As of January 19, 2025, the two-year settlement agreement reached in Edakunni v. Mayorkas expires, which means that USCIS is no longer required to expedite the adjudication of H-4/H-4 EAD and L-2 dependent applications that are filed concurrently with the I-129 for the primary worker. Should USCIS revert to prior processing practices where dependent applications are adjudicated separately, lengthy processing delays can be anticipated, potentially resulting in loss of work authorization for L-2 and H-4 spouses.
Historically, USCIS’s policy was to adjudicate H-4 and L-2 dependent applications around the same time as the concurrently filed I-129 petition for the H-1 or L-1 primary worker as a courtesy regardless of whether the I-129 was filed with regular or premium processing. Thus, dependent applications, which are not eligible for premium processing, could benefit from expedited adjudication when “bundled” with the I-129 for the H-1 or L-1 worker.
In March 2019, however, USCIS added a biometrics requirement to all Form I-539 applications, which made simultaneous adjudications impossible Thus, the I-539 and I-765 were “unbundled” for processing even if they were concurrently filed with the I-129. As a result, many H-4 and L-2 dependents waited 6-12 months or more for their applications to be approved. (The processing time for standalone H-4, H-4 EAD, and L-2 filings remains similar as demonstrated by the current USCIS processing times.) The lengthy wait time often resulted in loss of employment for L-2 spouses and H-4 spouses awaiting the adjudication of their H-4 and H-4 EAD applications.
In April 2021, a group of H-4 and L-2 holders filed a lawsuit against the Secretary of Homeland Security, Edakunni v. Mayorkas, alleging that the delay was unlawful and caused loss of employment. In January 2023, a settlement agreement was reached. As part of the two-year agreement, USCIS was required to bundle the adjudication of the I-539 and I-765 with the I-129, expediting adjudication (especially when the I-129 was filed with premium processing). The settlement agreement is set to expire on January 18, 2025, allowing USCIS to revert to prior practices.
Employers should anticipate delays in the adjudications of H-4, H-4 EAD, and L-2 applications, and consequently significant interruptions in H-4 and L-2 work authorization, when the Edakunni settlement’s “bundling” provision expires on January 18, 2025.
While USCIS could choose to continue with the simultaneous adjudication of dependent status and work authorization after the settlement agreement expires on January 18, 2025, it seems unlikely it will do so, especially as the term of the Biden administration will end on January 20th. It is anticipated that the incoming Trump administration will likely not continue to adjudicate the dependent status and work authorization together.
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Manish Daftari
Partner
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