Applying for E & L Spousal Work Authorization
INS headquarters recently issued a memo to its officers instructing on the implementation of recent legislation relating to the employment of spouses of E and L beneficiaries as well as the overseas employment requirements for beneficiaries of L blanket petitions.
This article will also explore the possibility for a spouse who is not in status to apply for employment authorization under the new statute.
On January 16, 2002, Congress amended the Immigration & Nationality Act by authorizing the employment of spouses of E-1 treaty traders or E-2 treaty investors and spouses of L-1 intra-company transferees within the US who have been admitted under Sections 101(a)(15)(E) or 101(a)(15)(L) of the Act respectively.
Public Law 107-124 adds a new subsection to Section 214(e) of the Act which states that in the case of the spouse admitted under Section 101(a)(15)(E) of the Act who is accompanying or following to join a principal alien admitted under this section, the Attorney General “shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘employment authorized’ endorsement or other appropriate work permit.”
Public Law 107-125 adds a new subsection to Section 214(c)(2) of the Act which states that in the case of the spouse admitted under Section 101(a)(15)(L) of the Act who is accompanying or following to join a principal alien admitted under this section, the Attorney General “shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘employment authorized’ endorsement or other appropriate work permit.”
The INS memo emphasizes that the statute is immediately effective, and provides “open market” employment authorization to such spouses. There are no similar provisions that allow for the employment of the dependent children of the principal E or L nonimmigrant.
The spouse must submit Form I-765 to one of the four INS Service Centers with jurisdiction over his or her place of residence. However, concurrently filed applications with Form I-129 petition for E-1 and E-2 principal aliens can only be filed at the appropriate California or Texas Service Centers.
Along with the Form I-765 application, the Form I-94 of both the dependent spouse and the E and L nonimmigrant principal spouse, evidencing admission or change of status into E or L nonimmigrant classification should be provided. If available, applicants should submit a copy of the petition approval notice of the E or L nonimmigrant principal to assist in verifying status.
The spouse should write in the words “Spouse of E nonimmigrant” or “Spouse of L nonimmigrant” in the space provided in Form I-765 that requests the basis for employment authorization. Employment authorization will be limited to the period of admission of the principal E and L nonimmigrant spouse, and is not to exceed two years.
The INS has up to 90 days from the filing date to adjudicate the Form I-765 application. In the event that the spouse does not receive the employment authorization documents within this 90-day period, he or she can go to a district office and receive the document that is valid for up to 240 days.
Employment Authorization and Nonimmigrant Status
The new provisions state that the Attorney General “shall” authorize the spouse of an E or L nonimmigrant who has been admitted under Sections 101(a)(15)(E) or 101(a)(15)(L) of the Act to engage in employment in the US. Therefore, a plain reading of the statute requires the spouse to only prove that the principal E or L nonimmigrant was admitted into these classifications. The statute does not require the spouse seeking employment authorization to establish that the principal E or L nonimmigrant is currently maintaining status in the US. Therefore, under a strict reading of the statute, even if the principal E or L nonimmigrant has fallen out of status through a lay off or due to a closure of business, the spouse could nevertheless apply for employment authorization. The spouse also falls out of status when the principal nonimmigrant violates status. All that the spouse has to establish is that the principal E or L nonimmigrant was admitted into that classification.
The memo too instructs that the spouse is to submit, with Form I-765, the I-94s of both parties to establish admission into that classification, but does not require other kinds of documentation such as payroll records to establish that the principal nonimmigrant is presently working pursuant to the E or L classification.
It remains to be seen whether the INS will interpret this provision differently, but a plain reading of the provision only requires the spouse to establish that the principal E or L nonimmigrant was admitted or changed status into that classification. This obviously would create an anomalous, albeit interesting, situation where the principal E or L nonimmigrant could be out of a job and status but the spouse could obtain work authorization.
Changes to Foreign Experience Requirement for “Blanket” L Nonimmigrants
Finally, the memo also instructs that Public Law 107-125, amends Section 214(c)(2) to allow aliens to qualify for L visas after having worked for 6 months overseas for employers if the employer has filed a blanket L petition and has met other requirements. Previously, this section of the Act required that a beneficiary of an L visa, within 3 years preceding the time of his application for admission into the US, has been employed abroad continuously for one-year in the foreign branch, subsidiary, parent or affiliate of the petitioning employer. For INS memo, http://www.ilw.com/immigrationdaily/News/2002,0304-elmemo.shtm
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.