For the last several years, unnecessary delays and long processing times of H-4 and H-4 EAD (Employment Authorization) applications have caused frustration for H-1B dependents attempting to change or extend their status, and/or seeking employment authorization. In some cases, H-4 EAD holders had to leave their jobs because their applications to renew their work permits were not approved by USCIS before the expiration of their current employment authorization, despite timely filing their applications. Prior to policy changes made in 2019, the U.S. Citizenship and Immigration Services (USCIS) adjudicated these applications at the same time as the underlying H-1B petitions. After 2019, H-4 and H-4 EAD applications have often remained pending for several months after the underlying H-1B petitions have been approved.
In a recent settlement reached in Edakunni v. Mayorkas, the Department of Homeland Security has now agreed to return to their former policy, and USCIS will once again bundle the adjudication of applications for H-4 status and H-4 EAD applications with the adjudication of the principal’s H-1B petition — as long as the applications are filed at the same time as the H-1B petition. This change takes effect beginning January 25, 2023.
Notably, since 2019, H-4 status and EAD applicants have not been able to benefit from Premium Processing, as USCIS only offers Premium Processing for select types of petitions. Now that the adjudication of these dependent applications can be coupled with the underlying H-1B petition, they benefit when an H-1B petition is submitted with (or upgraded to) Premium Processing. Under Premium Processing, USCIS will review the petition within 15 calendar days.
At this time, it is not clear whether, or how, the re-coupling of H-1B petitions with H-4 and H-4 EAD applications will impact the overall adjudication timeline for H-1Bs. It is likely that it will result in slower processing times for H-1B adjudications, whether or not they are filed concurrently with H-4 and EAD applications. However, the availability of Premium Processing for these cases at least provides an option to expedite processing.
If you have questions about your particular case, contact the Harris Beach immigration team to discuss the options that may be available to you. Our Immigration Law Practice Group includes immigration attorneys that work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.