Providing Developments & Insight on Trending Topics in Employment Law

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Providing Developments &amp; Insight on Trending Topics in Employment Law

In a settlement, United States Citizenship and Immigration Services (USCIS) has agreed to return to processing dependent H-4 and L-2 applications at the same time as the H-1B or L-1 petition when filed concurrently. This settlement has returned USCIS to its pre-2019 policy, which changed due to the implementation of a biometrics requirement for dependent applications.

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Before March 2019, USCIS routinely processed dependent applications, including H-4 and L-2 employment authorization documents, either at the same time or within a few days of the adjudication of the petition for the primary beneficiary (that is, the H-1B or L-1 visa holder). In March 2019, USCIS began requiring the taking of biometrics for dependent applicants. The addition of a biometrics requirement resulted in separate adjudications of the petitions for primary beneficiaries and their family members, creating gaps of months between the adjudication of the primary petition and the dependent applications. Although the biometrics requirement was suspended in March 2020 due to COVID-19, USCIS has continued to adjudicate dependent applications much more slowly than the corresponding H-1B or L-1 petitions. This gap in adjudication has been especially difficult for spouses who are relying on their dependent status to work in the United States and have faced gaps in employment authorization due to this policy change.

The restarting of bundling dependent applications with the primary petitions will likely result in fewer gaps in employment authorization for spouses and ease the fears of many family members of H-1B and L-1 visa holders. This change should also be particularly beneficial to spouses of L-1 visa holders who, since January 2022, have been authorized to work incident to their status. One of the primary methods of verifying this employment authorization has been an I-94 record with the L-2S designation, which will now become much quicker to attain due to this settlement.

However, this settlement only applies to applications and petitions filed concurrently. If a dependent extension application is filed separately from the primary beneficiary’s application, the dependent application will not receive the expedited adjudication offered by this settlement, which is consistent with USCIS’ policy pre-March 2019. Therefore, it is more important than ever to file dependent applications with the primary beneficiary’s I-129 petition to ensure that dependent applications are adjudicated in an expedited manner.

Back to the Future: USCIS Resumes Expedited Processing of H-4 and L-2 Applications When Filed Concurrently with an H-1B or L-1 Petition