Sensible Relief For H-1B/L-1 Visa Holders And Their Dependents

In past years (2015 through March 2019), H-4 and L-2 dependents who filed their petitions simultaneously with their spouse’s/parent’s H-1B and L-1 were assured to have their petitions adjudicated concurrently. Indeed, concurrent adjudication was assured, even if the H-1B/L-1 petition was filed with premium processing. There was no independent premium processing for H-4 and L-2 petitions.

However, on or about March 11, 2019, the previous administration initiated the biometric requirement for H-4 and L-2 petitions, stating it was required for “identity management . . . to ensure applicants are who they claim to be.” See Compl. ¶ 219-20 at 46, Edakunni v. Mayorkas, 2:21-cv-00393-TL (W.D. Wash. March 22, 2021). The delays caused by the biometric requirement resulted in H-4 and L-2 petitions (and the corresponding Employment Authorization Documents when applicable) losing the benefit of concurrent adjudication of their petitions with their parent’s/spouse’s primary H-1B/L-1. The denial of concurrent adjudication was even more severe when the primary petitions were filed with premium processing.

As a result, a lawsuit was filed in 2021. Identified as Edakunni v. Mayorkas, 2:21-cv-00393-TL (W.D. Wash. March 22, 2021). A subsequent settlement of this case was entered into by the parties on January 19, 2023, with a specific section to commence on January 24, 2023, for “all H-4 and L-2 derivative beneficiaries who have properly filed together their Form 1-539 and Form 1-765, where applicable, with the underlying Form 1-129.” Settlement Agreement at 3, Edakunni v. Mayorkas, 2:21-cv-00393-TL (W.D. Wash. Jul. 5, 2022).

Also, for the next two (2) years USCIS will be required to “bundle the adjudication of the Form 1-539 and Form 1-765, where applicable, for H-4 and L-2 derivatives with the underlying Form 1-129, when these forms are properly filed together regardless of whether they are filed under standard or premium processes option.” Id. The Edakunni settlement further provides the following definitions:

Bundle: The term “Bundle” refers to the processing by users of multiple forms together as a package.

Properly Filed Together: The term “properly filed together” means packaged together and filed at the same time and in the same location, consistent with users Form instructions.

H-4 And L-2 Derivatives: The term “H-4 and L-2 Derivatives” refers to the spouse and minor children of principal H-1B and L-1 nonimmigrant workers who are present in the United States in H-4 or L-2 nonimmigrant status or who have a pending change of status application requesting H-4 or L-2 nonimmigrant status. Id.

Although limited to the next two (2) years, it is notable that the Edakunni settlement provides some necessary relief to the spouses and children of principal H-1B and L-1 visa holders.