One of the biggest issues faced by spouses of H-1 and L-1 holders in the last few years was that USCIS stopped processing their applications even when filed with the principal application. This resulted in much uncertainty and due to delays in processing cases many spouses were forced to stop working.
Prior to the Trump administration USCIS used to adjudicate principal and derivative applications that were filed concurrently. Therefore, if an employer filed an H-1B in premium processing along with an H-4, both applications would get adjudicated at the same time.
However, the Trump administration intentionally delayed the derivative filings to prevent spouses from working. H-4 EAD applications were delayed to the point where applicants were experiencing gaps in their employment and were losing jobs because of it.
Even though USCIS introduced an automatic extension for H-4 EAD applicants, this only applies where the applicant possesses a valid I-94. Therefore, if an applicant filed an H-4 and EAD the only way the automatic extension would apply is if the H-4 was approved before the expiration of their current H-4 (which was not happening) of if the person left and reentered with a new H-4.
Now as part of a major settlement USCIS has agreed to adjudicate H-4, H-4 EADs and L-2 at the same time as the I-129 (H-1B or L-1) provided the applications are filed together. This means someone who files an H-1B in premium processing with H-4 and EAD will have all applications adjudicated within the 15-day time frame. However, if an applicant chooses to file the H-1B and then at a later date file the H-4, this will not be adjudicated together. It is therefore recommended that H-4s, EADs and L-2s be filed with the principal’s I-129 wherever possible.
USCIS will start this new procedure as of January 25, 2023. This settlement shows the effectiveness of filing federal lawsuits against the government and is another example of reversing the damage done by the prior administration.
If you have any questions regarding the above, please reach out to us.