Employers should anticipate more delays in the adjudications of work permit applications for H-4 and L-2 dependents when the Edakunni v. Mayorkas settlement’s “bundling” provision expires on January 18, 2025.
The 2023 Edakunni v. Mayorkas settlement agreement required U.S. Citizenship and Immigration Services (USCIS) to adjudicate properly filed extension of status and work permit applications of H-4 and L-2 dependents that were filed simultaneously with the principal’s H-1B or L-1 application. However, that mandate ends on January 18, and to date, less than three months from the provision’s sunset, USCIS has not indicated how it will adjudicate simultaneously filed applications going forward.
The result is that H-4 and L-2 dependents may be unable to file their petitions to extend their statuses and work permits simultaneously with the primary L-1 and H-1B visa holder applications after January 18, potentially resulting in significant processing delays.
Background
On January 19, 2023, a settlement was reached with USCIS in the case of Edakunni v. Mayorkas, where USCIS agreed to simultaneously process applications for H-4 and L-2 dependent status alongside the principal applicant’s petition when both were filed concurrently and correctly, including work permits (employment authorization documents (EADs)) for dependent spouses.
Before the settlement, Form I-539 (Application to Extend/Change Nonimmigrant Status) and Form I-765 (Application for Employment Authorization) for H-4 and L-2 dependents were processed separately from the primary visa holder’s application, which led to significant delays for the spouses and children of foreign workers in the United States.
The bundling process pursuant to the Edakunni v. Mayorkas settlement provided much-needed relief because it decreased the lengthy processing times for dependents’ extension of status applications and allowed for faster employment authorization processing for H-4 and L-2 nonimmigrant spouses. The bundling provision was to remain in effect for two years and is now set to expire on January 18, 2025.
Potential Impact
USCIS has yet to provide guidance on how it plans to adjudicate these applications after the Edakunni settlement obligations expire. USCIS may return to processing dependent applications separately, as it did before the settlement. If that occurs, employers should anticipate significant processing delays or new policies from USCIS concerning status extensions or work authorizations for H-4 and L-2 dependents. Presently, processing times for extensions of stay for H-4 dependents filed separately range from three months to six months with the bundling provision in place. If all dependent applications revert to being processed separately, these processing times will increase exponentially, given the higher volume of cases that will be processed separately.
These processing delays may result in significant interruptions in employment for H-4 and L-2 dependents and pose ongoing business challenges for employers. For example, H-4 and L-2 dependents may experience gaps in employment of several months – as happened before the Edakunni settlement. Additionally, dependent spouses may face other barriers, such as applying for a driver’s license when the license’s validity period is tied to the expiration of their lawful status. Moreover, these applicants are unable to travel while the application is pending.
Crucial Points for Employers
Noting that USCIS has yet to provide guidance, and this election year may impact future policies from USCIS, employers should anticipate additional delays in the adjudication of H-4 and L-2 applications. Employers who want to take advantage of the Edakunni settlement provision should prepare to file any qualifying bundled petitions before January 17, 2025 in an abundance of caution. Please note the following qualifying requirements:
The 2023 Edakunni v. Mayorkas settlement agreement required U.S. Citizenship and Immigration Services (USCIS) to adjudicate properly filed extension of status and work permit applications of H-4 and L-2 dependents that were filed simultaneously with the principal’s H-1B or L-1 application. However, that mandate ends on January 18, and to date, less than three months from the provision’s sunset, USCIS has not indicated how it will adjudicate simultaneously filed applications going forward.
The result is that H-4 and L-2 dependents may be unable to file their petitions to extend their statuses and work permits simultaneously with the primary L-1 and H-1B visa holder applications after January 18, potentially resulting in significant processing delays.
Background
On January 19, 2023, a settlement was reached with USCIS in the case of Edakunni v. Mayorkas, where USCIS agreed to simultaneously process applications for H-4 and L-2 dependent status alongside the principal applicant’s petition when both were filed concurrently and correctly, including work permits (employment authorization documents (EADs)) for dependent spouses.
Before the settlement, Form I-539 (Application to Extend/Change Nonimmigrant Status) and Form I-765 (Application for Employment Authorization) for H-4 and L-2 dependents were processed separately from the primary visa holder’s application, which led to significant delays for the spouses and children of foreign workers in the United States.
The bundling process pursuant to the Edakunni v. Mayorkas settlement provided much-needed relief because it decreased the lengthy processing times for dependents’ extension of status applications and allowed for faster employment authorization processing for H-4 and L-2 nonimmigrant spouses. The bundling provision was to remain in effect for two years and is now set to expire on January 18, 2025.
Potential Impact
USCIS has yet to provide guidance on how it plans to adjudicate these applications after the Edakunni settlement obligations expire. USCIS may return to processing dependent applications separately, as it did before the settlement. If that occurs, employers should anticipate significant processing delays or new policies from USCIS concerning status extensions or work authorizations for H-4 and L-2 dependents. Presently, processing times for extensions of stay for H-4 dependents filed separately range from three months to six months with the bundling provision in place. If all dependent applications revert to being processed separately, these processing times will increase exponentially, given the higher volume of cases that will be processed separately.
These processing delays may result in significant interruptions in employment for H-4 and L-2 dependents and pose ongoing business challenges for employers. For example, H-4 and L-2 dependents may experience gaps in employment of several months – as happened before the Edakunni settlement. Additionally, dependent spouses may face other barriers, such as applying for a driver’s license when the license’s validity period is tied to the expiration of their lawful status. Moreover, these applicants are unable to travel while the application is pending.
Crucial Points for Employers
Noting that USCIS has yet to provide guidance, and this election year may impact future policies from USCIS, employers should anticipate additional delays in the adjudication of H-4 and L-2 applications. Employers who want to take advantage of the Edakunni settlement provision should prepare to file any qualifying bundled petitions before January 17, 2025 in an abundance of caution. Please note the following qualifying requirements:
- An I-129 petition for the primary applicant and its accompanying dependent (H-4 and EAD) applications may be submitted up to six months before the employment start date or six months prior to the expiration of an approved I-129 petition for H-1B and L-1 visa holders.
- An application for an extension of status cannot be adjudicated if the applicant travels after filing because it may nullify the filing. This means applicants should be prepared to remain in the United States throughout the pendency of the application.
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