For a long time, spouses of H-1B and L-1 visa holders have been facing long delays in getting their work authorization applications approved. This was due to the Trump administration’s policies which were designed to prevent these spouses from working in the United States. However, on January 19, 2023, the Department of Homeland Security (DHS) reached a settlement agreement in Edakunni v. Mayorkas that will provide relief to many of these spouses.
This is great news for many families who have been waiting for years for their applications to be approved. The new legal settlement should help reduce the processing times significantly and make it easier for spouses of H-1B and L-1 visa holders to get work authorization in the United States.
The settlement requires U.S. Citizenship and Immigration Services (USCIS) to bundle adjudications of Forms I-539 for H-4 and L-2 spousal visas with the principal’s H-1B or L-1 petition. This means that instead of waiting up to two years for their application to be processed, H-4 and L-2 visa holders can now expect their applications to be processed within a few months. The settlement also requires USCIS to process certain pending applications within 90 days of the agreement coming into effect on January 25, 2023.
“The class action settlement in Edakunni focuses on what plaintiffs demanded in April of 2021 when this case was initiated; bringing back the concurrent processing methodology that even USCIS officials have stated in depositions was more efficient for adjudicators,” said Wasden and Brown.
Trump administration officials expressed interest in rescinding a regulation finalized during the Obama administration that granted work authorization to the spouses of H-1B visa holders with approved immigrant petitions. H-1B spouses are primarily in H-4 status, and an H-4 EAD (employment authorization document) provides work authorization.
Before March 2019, USCIS would typically process H-4 dependent and H-4 EAD applications together with the H-1B petition from the same family. The turnaround time was 15 days with premium processing. However, the USCIS policy changes, including the new biometrics requirement, resulted in prolonged wait times for H-4 EADs.
H-4 visa extensions on Form I-539 took up to two years to be processed by the California Service Center, compared to the previous average processing time of less than four months at USCIS centers. This long processing time made it practically impossible for many H-4 spouses to keep their jobs and work authorization.
In Kolluri v. USCIS, the plaintiffs claimed that the new biometrics policy for H-4 visa holders was deliberately created to revoke their work authorization. According to the plaintiffs, the USCIS Senior Policy Council decided to collect biometrics from H-4 extension applicants on Form I-539 starting March 30, 2019.
The plaintiffs maintained that the requirement of new biometrics for H-4 visa renewals lacked a legitimate purpose, as they had already provided biometrics in previous immigration applications. They believed the agency’s demand for new biometrics was a guise and accused the agency of acting in bad faith, especially since there were no reported risks such as fraud or threats to national security associated with H-4 dependent spouses.
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. The November 2021 settlement in Shergill evolved from the then-pending Edakunni lawsuit, filed in early 2021. The Shergill case was filed on behalf of L-2 and H-4 plaintiffs who sought reauthorization (or extensions) of employment. DHS did not settle the Edakunni lawsuit until January 2023.
While welcomed by many, the settlement in Edakunni v. Mayorkas involved a change in policy that it appears 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 because of the government’s process at USCIS,” said Jon Wasden in an interview. “When employment authorization was processed concurrently with the H-1B application, it went smoothly. The disruption that the agency caused with the change of policy under the Trump administration was unfathomable.”
Additionally, Jonathan Wasden of Wasden Law and Steven Brown from Reddy & Neumann, P.C., along with Jesse Bless of the American Immigration Lawyers Association (AILA) and Kripa Upadhyay of Karr Tuttle Campbell, were all involved in the Edakunni v. Mayorkas settlement that requires USCIS to bundle adjudications of Form I-539 for spouses of H-4 and L-2 visa holders. This means that instead of waiting up to two years for processing, these applicants can expect their applications to be processed within a few months.
To conclude, the settlement in Edakunni v. Mayorkas is a significant win for spouses of H-1B and L-1 visa holders, who can now expect their applications to be processed much faster than before. It is also a move towards greater fairness within the immigration system, as families are no longer forced to wait years for decisions on their applications. This settlement should make it easier for spouses of visa holders to get work authorization in the United States, thereby strengthening their families and communities.