The following is more of a technical article, but it is important to know because basically, it requires the USCIS to “bundle” which means adjudicating dependent L-2 and H-4 applications at the same time as the principal applicant’s case (filed on form I-129).
The highlights are
- No biometrics for previously submitted change of status and extension of H-4, L-2, E visas for applications filed from May 17,2021 to May 17, 2023.
- L-2 visa holders can automatically work without the need to obtain an EAD
- “Bundling” occurs under standard and premium processing.
- The article discusses some strategy concerns for attorneys filing green cards as well, so we are reprinting for our readers as well.
On January 19, 2023, a settlement was reached in Edakunni, et al. v. Mayorkas, No. 21-cv-393-TL (W.D. Wash.), under which USCIS agreed to return to bundling the adjudication of Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization, for H-4 and L-2 derivatives along with the underlying Form I-129, Petition for a Nonimmigrant Worker, when those forms are properly filed together, regardless of whether they are filed under standard or premium processing.
This is the same lawsuit that earlier brought about a temporary suspension of the biometrics requirement and fees for individuals changing into or extending H-4, L-2, E-1, E-2, and E-3 nonimmigrant status, effective from May 17, 2021 – May 17, 2023.
The following are important considerations of which to be aware following the Edakunni settlement:
- The term “bundle” refers to USCIS processing multiple forms together as a package. USCIS will only bundle Form I-539 and Form I-765 (where applicable) for H-4 and L-2 derivatives, when they are packaged together with the underlying Form I-129 and filed at the same time and in the same location. Therefore, all bundled forms, along with supporting documentation and fees should be placed in the same envelope or package. Each filing fee should be made out separately. See AILA Doc. No. 23020103.
- The Shergill v. Mayorkas, 21-cv-1296- RSM (W.D. Wash.) settlement recognizes that L-2 spouses will have automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States. Therefore, while L-2 dependents are no longer required to apply for their EADs, if they elect to do so in order to have U.S. issued photo identification, they are eligible to file their I-765 application with the I-539 application as a bundle with the underlying I-129, Petition for a Nonimmigrant Worker.
- Bundling can occur regardless of whether the underlying Form I-129 is filed under standard or premium processing. When bundling is possible, this will greatly improve I-539 and I-765 processing times for H-4 and L-2 derivatives.
- The option to bundle should encourage us to keep principal and derivative expiration dates the same when possible. For example, consider the following scenario:
- You are working on an H-1B filing to change employers. The H-1B principal’s and H-4 derivative’s statuses are expiring in June 2025. Since the principal’s H-1B status will be extended, an extension is not yet required for the H-4, though it’s recommended to keep the principal’s and derivative’s expiration dates together. However, with bundling of the I-539 and I-765 only being available when those forms are filed together with the underlying I-129, it is now essential to keep expiration dates consistent between the principal and derivative.
- Where the principal’s status expires first, review whether there are any changes to the conditions of the principal’s employment that might justify an amendment, allowing bundling to occur. The change need not be material. The need for this review is especially relevant when an H-4 derivative will need to apply for or renew H-4 work authorization. Given that the employer must pay for and sign the Form I-129, the employer must be willing to proceed with such a filing. Consider the following scenario:
- You were just authorized to move forward with a Form I-539 and Form I-765 renewal for an H-4 derivative whose status expires in June 2023. Unfortunately, the H-1B principal’s status does not expire until June 2024. The H-4 derivative is in danger of losing his job if the H-4 work authorization is not approved around June 2023. The H-1B principal just started working at a new location, and the employer is willing to file an H-1B amendment. The I-129 will be filed with premium processing, and the I-539 and I-765 can be bundled with the I-129.
- Assess whether the expansion of premium processing services to all E13 multinational executive and manager petitions and E21 NIW petitions might be considered alongside this bundling procedure to supply faster work authorization for spouses, by allowing for faster approval of an I-140 petition.1
- As with the temporary suspension of the biometrics requirement and fees, this settlement agreement is also temporary and currently will expire two years after the January 19, 2023, effective date.
- With the temporary nature of this settlement, practitioners should be mindful of the two-year timeframe and follow any further guidance from USCIS on the settlement, including but not limited to policy manual updates.