Background Information
- In 2023, a settlement was reached in a lawsuit against the USCIS resulting in the USCIS being required to simultaneously adjudicate bundled H-4 EAD (I-539 and I-765) applications alongside the principal’s I-129 via premium processing.
- Although I-539 and I-765 applications are not eligible for premium processing, after the settlement the USCIS extended premium processing of I-129 petitions to concurrently filed I-539 and I-765s.
- However, this agreement is set to expire on January 18, 2025.
What We Can Expect
The USCIS has not yet provided information on how they will handle bundled applications after January 18th, 2025, however, looking at previous policy and how similar applications are adjudicated gives insight into what we can expect moving forward.
- Prior to the 2023 agreement, the USCIS adjudicated bundled applications individually, resulting in lengthy delays.
- This, in turn, caused many derivative spouses to experience loss of employment as they were forced to wait extremely long periods of time to receive work visas.
- Other applications (such as TD and O-3 classifications) not covered by the settlement agreement currently take between five and seven months to adjudicate — we can expect the same timeframe for I-539 and I-765s.
Other Sources Of Relief
While the outlook may seem bleak, the USCIS has implemented several promising policies over the past two years that provide relief for derivative dependents, including:
- March 2022; Updated its policy Manual to confirm E and L spouses are authorized to work based on their valid nonimmigrant status and clarify they do not need to apply for EAD work permits.
- January 2023; Expanded its premium process services to certain I-539 and I-765 applications. Although this is not currently available to H-4 or L-2 derivative applicants, the USCIS reserves the right to do so in the future.
- April 2024; Increased the automatic extension of certain EAD categories from up to 180 days to up to 540 days to prevent lapses in work authorization during periods of pending application renewals.
In summary, the end of the 2023 settlement agreement will likely result in prolonged application approval delays, negatively affecting businesses seeking to employ derivative spouses and impacting families reliant on dual sources of income.
Any seeking to file an I-129 petition concurrently with an I-539 and I-765 application via premium processing should therefore attempt to do so before Friday, January 17th, 2025, provided they fall within the required six months of their employment start date or expiration of their previous I-129 petition.
