January 23, 2023
Impact: Medium
Summary
Starting January 25, 2023, USCIS will adjudicate Form I-539 and Form I-765 applications for H-4 and L-2 derivatives at the same time as the underlying I-129 petition for the main H-1B and L-1 applicant, when the forms are filed together.
The Detail
Prior to March 2019, USCIS would generally adjudicate Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization at the same time as the I-129 petition when the forms were filed together. However, in 2019, USCIS changed a number of its policies, including requiring H-4 and L-2 derivatives to provide biometrics before adjudicating their application. As a result, Form I-539 applications, filed on behalf of H-4 and L-2 derivatives, were separated from I-129 petitions and adjudicated separately. Accordingly, the wait times for I-539 applications grew longer, with some applications taking over a year to process. Due to the long wait times, some H-4 and L-2 holders had to stop working as their Employment Authorization Document (EAD) expired while their current extensions continued to remain pending with USCIS.
In order to redress this situation, two class action lawsuits were filed in 2021 seeking relief for spouses of H-1B and L-1 status holders. USCIS ultimately settled both lawsuits. In November 2021, USCIS issued policy guidance that granted automatic extensions of employment for certain H-4, E and L nonimmigrant spouses. On January 19, 2023, a second settlement was reached where USCIS agreed to bundle adjudications of I-539 and I-765 applications for H-4 and L-2 derivatives when filed with the I-129 petition.
Regardless of whether the primary H-1B or L-1 petition is filed under regular or premium processing, USCIS will now issue a decision on the Form I-539 and the Form I-765 application at the same time as a decision is rendered on the I-129 petition. This settlement is effective on January 25, 2023 and is valid for two years.
What this means
As a result of this settlement, processing times for derivative applications should be significantly reduced. This will help mitigate potential gaps in employment for spouses. Additionally, issues with ancillary benefits, such as obtaining a renewed driver’s license based on a pending application, should be reduced as the derivative will now have an approved application.
Contact us
Please reach out to Manish Daftari (manish.daftari@vialto.com) to discuss further.
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