January 30, 2023

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The U.S. Citizenship and Immigration Services (USCIS) has reached a settlement that will mean significant changes in how the agency adjudicates Employment Authorization Documents (EADs) for H-1B visa holders’ dependents. In addition, this settlement will bring a close to a lawsuit over policies instituted by the previous administration. According to the plaintiffs, these policies caused significant delays.

Before making these changes in 2019, the USCIS adjudicated the Application to Extend/Change Nonimmigrant Status (Form I-539) and Application for Employment Authorization (Form I-765) for H-4 and L-2 dependents when concurrently filed. However, policy changes after this time had the USCIS separate these applications. In addition, the USCIS required dependents to provide additional biometrics, which led to significant delays for both spouses and children of foreign national workers.

Due to these policy changes, wait times grew significantly. This increase mainly affected H-4 spouses who had to submit biometrics before extensions. As such, the plaintiffs attempted to argue how the changes did not serve a legitimate purpose, though the argument failed. In their view, H-4 spouses already supplied this information with their applications. As such, the DHS lacked evidence that new biometrics are required to prevent fraud, criminal activity, or threats to safety or national security.

These changes altered how long the California Service Center takes to adjudicate H-4 visa extensions when submitted via Form I-539. Allegedly, the changes led to an increase from less than four months to two years. In many cases, the timeframe spouses could file made it impossible to retain their employment authorization and employment.

Through this settlement, the USCIS must resume bundling Forms I-765 and I-539 applications with the underlying Form I-129 when filed concurrently. This action is in addition to an earlier case, which made it easier for H-1B and L-2 spouses to gain and retain their employment authorizations.

Under the changes made in the earlier settlement, L-2 spouses acquired employment authorization consequent to their status, meaning they no longer need to apply for work authorization. In addition, H-4 spouses received relief with a 180-day automatic extension of their employment authorization. However, this relief applied to timely filed renewal applications if USCIS fails to process them on time.

As USCIS policies fluctuate, keeping up-to-date and compliant with the latest developments in Form I-9 policy is essential. The best way to ensure continued compliance is with an electronic I-9 management tool. This tool can guide HR personnel to complete Form I-9 and provide safe and convenient storage for forms and documentation.

Learn more about automating your employment eligibility verification and ensuring compliance with I-9 Compliance.

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