USCIS Agrees To Bundle Adjudication Of Concurrently Filed H-4/EAD And L-2 Dependent Applications
As part of the settlement agreement between the Department of Homeland Security (DHS) and the plaintiffs in Edakunni v. Mayorkas, USCIS has agreed to resume its policy of bundling the adjudication of Forms I-539 (e.g., requests for extension/change of H-4 or L-2 dependent status) and Forms I-765 (e.g., requests for H-4 Employment Authorization Documents (EADs) that are filed by H-4 and L-2 dependents concurrently with Form I-129, Petition for Nonimmigrant Worker.
• Only Forms I-539 and I-765 that are concurrently filed at the same USCIS service center as the principal foreign workers’/spouses’ Form I-129 will benefit from this bundled adjudication policy, whether the Form I-129 is filed under regular or premium processing. As the Forms I-539 and I-765 themselves do not yet qualify for premium processing, if they are filed standalone, they will be processed under USCIS’s regular processing timeframes.
• Up until 2019, USCIS routinely applied bundled processing, as a courtesy, to H and L dependent applications—both extension/change of status requests and EAD applications—that were concurrently filed with the H/L principal spouse’s petition. However, under the Trump Administration, USCIS implemented a biometrics requirement for the Form I-539 and signaled an intention to revoke spousal work authorization. While eligibility for spousal EADs remained available, processing times ballooned due to the additional biometrics requirement for Form I-539 (often filed at the same time as I-765 EAD applications). The COVID-19 pandemic only exacerbated processing delays, causing many H and L dependents issues with maintaining work authorization and, in some cases, valid immigration status.
• In May 2021, USCIS temporarily suspended the biometrics requirement for Form I-539 requesting an extension of stay in or change of status to H-4 dependent, L-2 dependent, and E dependent nonimmigrant status, which removed the primary hurdle to resuming bundled adjudications for H-1B, L-1, and E workers and their dependents. This biometrics suspension applies until May 17, 2023, subject to affirmative extension or revocation of the suspension period by the USCIS director. However, given the Edakunni settlement agreement, it is reasonable to expect that the USCIS director will announce an extended or indefinite suspension of the biometrics requirement for Form I-539.
• Under this Edakunni settlement agreement, the bundled adjudication policy is effective for two years from January 25, 2023 until January 25, 2025.
USCIS’s return to this pre-2019 bundled adjudication policy provides H and L spouses with further opportunity to ensure ongoing work authorization in the United States. As a reminder, L and E spouses are work authorized incident to status. However, H-4 spouses who are applying for their first EAD should consider, if possible, filing the I-765 application concurrently with the H-1B spouse’s extension, amendment, or change of employer petition to benefit from more predictable (and likely faster) processing times. And for those H-4 spouses who need to renew existing EADs, this bundled adjudication policy hopefully means that: (1) they can extend their I-94s more quickly; and (2) they will need to rely on the automatic extension rule less often.