A settlement agreement in the case of Edakunni v. Mayorkas was reached in January 2023. As part of the settlement agreement, USCIS agreed to: “bundle” the adjudication of Forms I-539 and I-765 for H-4 and L-2 derivatives with the underlying Form I-129 when these forms are concurrently filed together, regardless of whether they are filed under regular or premium processing.
Previously, adjudications for H-4 and L-2 derivatives lagged for several months behind the principal’s H-1B or L-1 petition. This settlement agreement allows the H-4 and L-2 derivatives’ applications for extensions of status and employment authorization to be adjudicated simultaneously with the principal family member’s underlying petition. This has helped decrease the lengthy processing times for extension of status applications and allowed for faster employment authorization processing.
The terms in the settlement agreement are valid for two years, which means they are set to expire on January 18, 2025.
What to Expect and Its Impact
Employers and foreign nationals should anticipate potential lengthy processing delays in the adjudication of applications to extend the status of family members and applications for employment authorization for eligible H-4 spouses. While premium processing is available for the principal’s underlying petition, it will no longer be available to H-4 and L-2 dependents after January 18, 2015.
With these potential lengthy processing delays, this will affect employers as it will pose challenges to their business operations when looking to employ H-4 applicants. This will also affect employees in the following ways:
- They may experience gaps in their employment authorization. Although the Department of Homeland Security announced a final rule that will become effective on January 13, 2025, that increases the automatic extension period for employment authorization from up to 180 days to up to 540 days, this will only apply to H-4 dependents if they have an unexpired Form I-94.
- It is also important to note that USCIS updated their guidance, stating that L-2 spouses do not have to file Form I-765 as their unexpired Form I-94 reflecting their nonimmigrant status will serve as evidence of employment authorization.
- H-4 and L-2 family members may also face difficulties applying or renewing their driver’s licenses, since most states’ department of motor vehicles services require a valid Form I-94.
USCIS has not indicated on their website whether they will continue to simultaneously adjudicate the derivatives’ applications filed after January 18, 2025. It is also not clear whether applications that are pending after January 18, 2025, will be simultaneously adjudicated.
The Immigration Team of Nilan Johnson Lewis will continue to monitor developments and provide any updates from USCIS.
