At one time, US Citizenship and Immigration Services (USCIS) took up to two years to process applications for the spouses of H-1B visa holders who needed work authorization. Lawyers blamed it on Trump administration policies that appear to be designed to prevent spouses from working in the United States. A new court settlement with the Department of Homeland Security (DHS) i Edakunni v. Mayorkas should help many spouses of H-1B and L-1 visa holders.
“The government and plaintiffs have signed a settlement in which USCIS will agree to return to bundling the adjudication of I-539s and I-765s for H-4 and L-2 derivatives with the underlying I-129 when those forms are filed together,” according to a statement from Jonathan Wasden of Wasden Law and Steven Brown of Reddy & Neumann, PC Jesse Bless was also involved in the settlement on behalf of the American Immigration Lawyers Association (AILA) and Kripa Upadhyay of Karr Tuttle Campbell. (Form I-539 is for applications to extend/change nonimmigrant status (temporary), and Form I-765 is for applications for work authorization.)
“The class action settlement in Edakunni focuses on what the plaintiffs demanded in April 2021 when this case was initiated; Bringing back the concurrent processing method that even USCIS officials have stated in depositions was more effective for judges, Wasden and Brown said. “Most importantly, when using this method, dependent spouses rarely faced job loss due to USCIS delays.”
The legal and political context
Trump administration officials expressed interest in rescinding a regulation finalized under the Obama administration that granted work authorization to the spouses of H-1B visa holders with approved immigrant petitions (ie, typically long-pending employment-based green cards). H-1B spouses are primarily in H-4 status, and an H-4 EAD (Employment Authorization Document) provides work authorization. (See this article.)
Prior to March 2019, USCIS would generally adjudicate an H-4 dependent petition and the H-4 EAD application simultaneous as the H-1B petition from the same family. If premium processing was used, the decision would take place within 15 days.
Wait times for H-4 EADs increased significantly after USCIS changed its policies, including requiring H-4 spouses to provide biometrics. H-4 visa extensions submitted on Form I-539 ultimately took up to two years to process at the California Service Center, compared to a previous average of less than four months at USCIS service centers. Due to when applications were allowed to be submitted to USCIS, the processing time made it mathematically impossible for many spouses to remain employed and authorized to work.
The plaintiffs in Kolluri v. USCIS charged the new policy of providing biometrics was designed purposefully to cause many spouses of H-1B visa holders to lose their work authorization. “On March 30, 2019, the agency’s Senior Policy Council determined that it would begin collecting biometrics for H-4 extension applications filed on Form I-539,” according to the plaintiffs. “This change exploded the Form I-539 processing time.”
The plaintiffs argued biometrics for H-4 EAD renewals did not serve a legitimate purpose. “Each of the H-4 plaintiffs has previously provided biometrics in connection with an application for immigration benefits either at a consulate or in the United States,” the plaintiffs noted. “The agency’s insistence on getting new biometrics before adjudication of the H-4 extension is a pretext. The agency’s insistence on biometrics for H-4 visa holders is telling, especially when ‘DHS is unaware of any risk factors — such as fraud, criminal activity, or threats to public safety or national security — associated with H-4 dependent spouses as a whole that would support to impose [additional burdens].'”
A legal settlement from November 2021
The relief for many spouses of H-1B and L-1 visa holders came in two separate legal settlements. DHS settled one lawsuit (Shergill) in November 2021.
“Once implemented by the agency, L-2 spouses will no longer need to apply for work authorization and need an employment authorization document as proof of being able to work in the United States,” Jesse Bless, then-law director at the American Immigration Lawyers Association, said in an interview effective November 2021. “For H-4 spouses who are in lawful status and only need to renew their employment authorization, they will now benefit from an automatic extension of their authorization for 180 days after the expiration if the agency is unable to process their timely applications.”
The settlement in November 2021 i Shergill developed from the then pending Edakunni lawsuit, filed in early 2021. The Shergill The action was brought on behalf of L-2 and H-4 claimants seeking reauthorization (or extension) of employment. DHS did not settle Edakunni lawsuit until January 2023.
While they were welcomed by many, the settlement was i Edakunni v. Mayorkas involved a change in policy that it seems should never have happened. “Prior to the Trump administration’s change in policy, H-1B and L-1 spouses did not go without employment authorization or fall out of status due to the government’s process at USCIS,” Jon Wasden said in an interview. “When employment authorization was processed at the same time as the H-1B application, it went smoothly. The disruption that the agency caused with the change in policy under the Trump administration was unimaginable.”