On January 18, 2025, a settlement agreement between US Citizenship and Immigration Services (USCIS) and plaintiffs in the class action lawsuit Edakunni, et al., v. Mayorkas, expired. The agreement included the resumption of USCIS's "bundling" I-129 and I-539 application processing when the I-129 applications were filed in premium processing. This allowed the dependent family members to receive an adjudication on their case within the 15 business-day filing window that the premium processing fee affords to the primary beneficiary's I-129 application.1
While there are several benefits to a timely adjudicated I-539 application for a dependent family member of a non-immigrant worker, the considerations for dependent spouses who are working takes on a financial cost. Spouses of workers who are employed on L-1, E-2 and H-1B non-immigrant visas require that their status be approved and documented by a valid I-94 document for their work authorization to be valid. Dependent spouses on L-2 or E-2 who have employment authorization incident to their status, or those on H-4 status with an approved Employment Authorization Document card (or EAD) who have been previously employed, are therefore at risk of losing their work authorization as of the I-94 expiration date, even if they have a pending I-539 to extend their status and have an approved or pending employment authorization document. This is because the prerequisite to their work authorization eligibility is valid, approved status in the dependent category for which they are eligible.2
Some might find confusing the language of the "automatic extension" provisions of the EAD, which allow for the employment authorization to be extended automatically while the EAD application (Form I-765) is pending. However, the fine print notes that the validity of the automatic extension is only up to 540 days from the EAD's expiration date or the expiration date on I-94, whichever is sooner. Thus, when a dependent spouse's status has expired per their I-94, it renders the EAD application's automatic extension provision moot if their application to extend their underlying status is still pending.3
Given the need for a working spouse on dependent L-2, E-2, or H4 status to maintain a valid I-94 to maintain their work authorization, even with a valid or pending EAD, it is recommended that they plan well in advance of their status expiration. First, filing early can alleviate the risk, but even if the applications to extend the non-immigrant status are filed as early as possible (180 days prior to status expiration), USCIS processing times may exceed the duration of time to the status expiration. An alternative course of action may be to travel after the approval of the primary non-immigrant employee's status approval to obtain new visas and reenter the United States. This admittance on the new visa would give the dependent spouse a chance to obtain a new I-94 based on their spouse's approved extension without having to wait for USCIS's adjudication of the pending I-539. However, since international travel and the requirements of visa processing contain other risks and considerations, this option should be discussed with an attorney.
Another option would be for the dependent spouse to obtain employment authorization in their own right with their employer, if possible. This again would require coordination with their employer and attorney and should be discussed in advance of the status expiration date. Depending on where the primary non-immigrant worker is in the lawful permanent resident or "green card" process, the dependent spouse might be eligible for an EAD based on a pending adjustment of status application, and this too should be considered as an alternative if it is applicable. Finally, in case processing times exceed the time remaining until I-94 expiration, in the worst-case scenario plans should be made to account for the potential loss of employment authorization and income.
USCIS does allow applicants to submit expedited processing requests in narrow circumstances, however the burden on the requestor to receive expedited processing is high. While "Severe financial loss to a company or person" is one of the possible bases to request expediting, it is not a viable consideration when "the need for urgent action is ... the result of the petitioner's or applicant's failure to timely file the benefit request or to timely respond to any requests for evidence."4
The precise recommended course of action for dependent spouses to maintain their work authorization may vary depending on the particular situation that one encounters, but regardless the most important step is to first be aware of your circumstances and plan early.
Footnotes
1. https://www.uschamber.com/cases/immigration/edakunni-v-mayorkas
2.https://www.uscis.gov/policy-manual/volume-10-part-b-chapter-2
3. https://www.uscis.gov/eadautoextend
4. https://www.uscis.gov/forms/filing-guidance/expedite-requests
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
