USCIS reaches settlement in H-1B and L1 class action lawsuit; relief for spouses of visa holders

Ritu Jha-

Amid the gloom of tech sector layoffs in the US, a new legal settlement with the Department of Homeland Security (DHS) holds hope for the thousands of skilled immigrants that make their way to this country each year – there will be significant reduction in visa processing times for spouses of H-1B and L1 visa holders.

Skilled immigrant workers have often pointed out how it takes over a year – sometimes even up to two years – for the visas of their spouses to be processed. Now, in the class action lawsuit Edakunni v. Mayorkas, the USCIS has reached a settlement that reduce processing times. The settlement was reached on January 19, 2023, and should go into effect for all cases filed January 25 and onward.

“This is a big relief for the H-4/H-4EAD (Employment Authorization Document) and L2 community as they can now make better plans to ensure there is no job loss. They can strategize on filing everything concurrently with the primary petition so they do not lose work authorization,” Steven A. Brown, Partner, Attorney at Law at Reddy & Neumann, one of the several attorney working on the case told indica.

“This case provides class-wide relief to tens of thousands of applicants if not more,” Brown said.

The settlement goes back to the pre-March 2019 policy USCIS had of concurrently processing the I-129, I-539, and I-765 when they are filed together. When the Trump administration introduced biometrics in March 2019, USCIS decoupled these adjudications leading to long processing time. Prior to that, processing times were much better and most folks didn’t lose jobs.

“When they were decoupled, we saw processing times go up to and over one year for spouse work authorization,” Brown said. “By going back to concurrent processing, these individuals will see a lot less job loss as they can plan accordingly with their spouse’s filing.”

Another attorney on this case Kripa Upadhyay of Karr Tuttle Campbell, the local counsel for the plaintiff in Washington, echoed Brown’s sentiment, saying it is a “huge relief”. She said, “Over the last two years, allegedly because of Covid, the amount of time taken to process work permits for spouses increased to almost a year, sometimes more. A prepaid work EAD application would take about six months. People are constantly having to leave their jobs and facing difficulties. Career breaks that are happening are going to impact people long term. The lawsuit was filed by a number of legal firms that alleged that USCIS did not really have a valid reason for the significant delay that happened in terms of why were they taking so long. We’ve never received a reason that essentially makes sense.”

The settlement was made between the plaintiffs’ attorneys and the US attorney’s office representing the USCIS. The settlement will mean that USCIS essentially will return to bundling the adjudication of the I-539 and I-765, along with the underlying I-129.

Upadhyay explained, “We would file the I-539, which is the extension of status, and then the I-765, which is the work permit authorization. What’s been happening at USCIS is that the I-129 gets approved even if you don’t file a request for premium visa processing. The I-129 gets approved in three months if you don’t file a request for premium visa processing. But the I-539 takes almost ‘a year’ to be approved. And, the I-765 work permit will not be approved until the I-539 is approved.”

She added, “So instead of processing them together, they’re sending them to different offices. And, that’s causing the delay. People who are on EAD, a work permit, have to maintain the work permit in order to continue to be able to work. When the work permit runs out, not only are they facing a loss of job, but they’re also facing significant issues in terms of their career. They’re facing job loss almost every year or every two years because of this issue.”

Now, the settlement will mean that the USCIS is going to handle all applications at the same time. “What has changed significantly now is that these applications can be bundled, meaning you can file I-129 for your principal, H1B or L1, at the same time as your I-539, and the employment authorization for your spouse. All three applications will be processed at the same time, instead of doing the I-129 first and then doing the spouse’s status and then only doing the employment authorization. All of the applications will be processed at the same time. And, immigration officials typically will need about 60 days to make changes, but that should happen fairly quickly.”

Prior to March 2019, USCIS would generally adjudicate an H-4 dependent petition and the H-4 EAD application at the same time as the H-1B petition from the same family. If premium processing were used, adjudications would take place within 15 days.

The wait times for H-4 EADs grew significantly after USCIS changed its policies, including requiring H-4 spouses to supply biometrics. H-4 visa extensions submitted on Form I-539 eventually took up to two years to process in the California Service Center, compared to a previous average of fewer than four months at USCIS service centers.

When applications were allowed to be submitted to USCIS, the processing times made it mathematically impossible for many spouses to remain employed and authorized to work.

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