Visa Issues for Nonimmigrant Spouses
On January 16, 2002, President Bush signed into law two bills allowing spouses of intra-company transferees (L-1A and L-1B visas), treaty traders (E-1 visa) and treaty investors (E-2 visas) to work in the United States.
H.R. 2277 (PL 107-124) provides work authorization to the spouses of E visa holders. H.R. 2278 (PL 107-125) provides work authorization to the spouses of L visa holders and reduces the required period of prior continuous employment for certain intra-company transferees. Specifically, H.R. 2278 amends INA section 214(c)(2)(A) to provide that in the case of an alien seeking admission under section 101(a)(15)(L), the required one-year period of continuous employment is reduced to six months if the importing employer has filed a blanket petition and met the requirements for expedited processing of aliens covered under such petition.
As expressed in our previous article, Work Authorization Given To Spouses Of E and L Visa,1 we hope that this legislation would serve as a springboard to provide work authorization to spouses of other visa holders. For instance, spouses of H-1B1 visa holders in H-4 classification are unable to work while they are in the United States. The largest group of nonimmigrants utilize the H-1B1 visa more than any other if they wish to work in the US.
Prior to this legislation, the only other nonimmigrant spouses who could work were the J-2 spouses of the J-1s and spouses of certain diplomats.2
Maintenance of Status for Nonimmigrant Spouses
Spouses and minor children of nonimmigrant visa holders inadvertently fall out of status. This happens at the time of renewal of the principal nonimmigrant's status for an additional period of time. The spouse's renewal application is often forgotten or falls through the cracks. This could occur when the nonimmigrant spouse joined the principal visa holder, often upon a marriage after the principal spouse acquired nonimmigrant status in the US. As a result, the employer's HR department may not have a record of the spouse's existence, as the initial petition was filed without any knowledge of a spouse. The H-1B1 employee may also not realize the need to file the spouse's extension and fail to reveal it to the employer.
Many clients belatedly realize that the spouse's renewal or extension was not sent with the principal's petition, resulting in an overstay of the expiration date on the I-94 card.
If the spouse has overstayed the expiration date by less than 180 days, this individual can leave the United States and apply for a new visa at the US consulate in the home country. Under Section 222(g) of the Immigration and Nationality Act (INA), a visa overstay would have to apply for a new visa in the country of the alien's nationality, unless extraordinary circumstances are found to exist. Were it not for Section 222(g), it would be more convenient to obtain the visa at a US consulate in Canada or Mexico.
If the spouse has overstayed the expiration of the visa for more than 180 days, the dreaded 3-year and 10-year bars against reentry into the US would take effect.
Under INA Section 212(a)(9)(B)(i)(I), an alien who has remained unlawfully present in the United States for more than 180 days but less than one year, and who voluntary departed the United States, cannot seek admission within three years of the date of such departure. Under INA Section 212(a)(9)(B)(i)(II), an alien who has remained unlawfully present in the United States for one year or more, cannot seek admission within ten years of the date of such departure from the United States.
Therefore, the departure of such a spouse to obtain the new visa would be devastating in light of the 3 and 10-year bars to reentry into the United States.
It might be worth filing for an extension of status even though one was not initially filed in a timely manner. Generally, one's status may only be extended or changed to another while the person is already maintaining status. Pursuant to an INS regulation, 8 CFR Section 214.1(c)(4), the agency has discretion to approve an extension of stay for an applicant who has failed to maintain status if it can be demonstrated that the "delay was due to extraordinary circumstances beyond the control of the applicant or petitioner and the INS finds the delay commensurate with the circumstances." The alien must continue to show that he or she has not violated the nonimmigrant status, remains a bona fide nonimmigrant and is not subject to deportation or removal proceedings.
This writer has been successful in filing extension applications for spouses who were inadvertently left out at the time of filing the principal visa holder's petition by invoking INS' discretionary authority. One can show that there was a genuine error resulting in the inadvertent omission of the spouse's extension application, and the failure to approve such an application would devastate the family.
If this strategy fails, the nonimmigrant spouse who falls out of status may be eligible to file for adjustment of status under INA Section 245(i). It is not uncommon for the principal nonimmigrant's employer to have filed a labor certification application before the Section 245(i) deadline, namely, April 30, 2001.3 If the principal applicant is now eligible for adjustment of status based on a pre-May 1, 2001 filing, the spouse who has overstayed could file an adjustment application as a derivative spouse under Section 245(i) by paying a fine of $1,000.
2For a survey of the work status of nonimmigrant spouses, See Can Spouses And Children Of Nonimmigrants Work In The U.S.? http://www.cyrusmehta.com/news_cyrus.asp?news_id=510
3Under INA Section 245(i) an alien who has not maintained status could still be eligible for adjustment of status if an immigrant visa petition or labor certification was filed before April 30, 2001, and that the person was physically present in the United States on December 21, 2000.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or firstname.lastname@example.org.