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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

INS Now Processing Employment Authorization Applications for E and L Nonimmigrant Spouses
by George N. Lester

As many of our readers know, Congress has passed and President Bush has signed legislation allowing the dependent spouses of L-1 and E-1/E-2 nonimmigrant temporary workers to engage in employment in the United States. The legislation became effective immediately, but requires implementing regulations from the Immigration and Naturalization Service (INS) to establish procedures for such persons to apply for proper documentation of their work authorization to present to employers. These positive legislative changes are intended to benefit multinational companies sending key employees to work in the United States and the employees' families. The two bills, H.R. 2277 and H.R. 2278, were passed by Congress on December 20 and signed by the President on January 16th.

INS has indicated that it is in the process of drafting the necessary amendments to the Code of Federal Regulations. In the meantime, it issued a Memorandum on February 22 which provides guidance on filing and processing of requests for employment authorization from E and L nonimmigrant spouses. Pending issuance of the final regulations, the Memorandum establishes an interim procedure under which E and L spouses may now go ahead and apply for an "Employment Authorization Document" (EAD) card which, upon presentation to a prospective employer, will evidence legal authorization to be employed in the U.S. and allow them to begin work. The Memorandum also confirms that for a person who establishes qualifying status as an E or L nonimmigrant spouse, the new legislation offers "open market," unlimited employment authorization.

In the procedure established in the Memorandum, the E or L nonimmigrant spouse seeking to obtain an EAD card must file a Form I-765 "Application for Employment Authorization" with INS. The form must be submitted to the INS regional Service Center having jurisdiction over the applicant's place of residence, or over a concurrently filed petition to extend status of the principal E or L nonimmigrant.

In a meeting with the New England Chapter of the American Immigration Lawyers Association (AILA) held Wednesday April 10, 2002, representatives of the Vermont Service Center confirmed that they are now actively processing these applications, and discussed the procedure further.

The following must be submitted with the application:

  • Proof of the principal E or L nonimmigrant's current status. This documentation would typically include the petition approval notice (for an L-1 nonimmigrant), a copy of the passport pages showing an E or L visa, the I-94 Arrival-Departure Record card showing admission in, change to or extension of E or L status and paychecks or other proof of continued qualifying employment.
  • Proof of the applicant's status as an E or L dependent spouse, in the form of the I-94 Arrival-Departure Record showing admission in, change to or extension of E or L dependent status.
  • On the form, the applicant must indicate "spouse of [L-1 or E nonimmigrant, whichever is the case] in the block where the basis for the application is filled in.
  • Note that the legislation allows employment authorization for only dependent spouses of E or L nonimmigrants, not for dependent children. Normally the I-94 card showing E or L dependent status does not distinguish between spouses and children, however. INS inspectors will be trained to make that distinction in the future, according to the Memorandum. In the meantime, while this is not specifically stated in the Memorandum as a requirement, we recommend that the applicant include a copy of the marriage certificate as proof of a qualifying spousal relationship with the principal E or L nonimmigrant.
  • It is also a requirement for I-765 applications to include two photographs of the applicant, meeting regular INS photograph specifications.
  • A filing fee of $120.
Click here to access the form I-765 and all relevant instructions, including locations and jurisdictions of the four INS Service Centers.


About The Author

George N. Lester, IV

EXPERIENCE

  • Represents U.S. employers seeking to hire foreign professionals, scientists, business persons and artists;
  • Represents foreign individuals applying for appropriate status to live and work in U.S.
  • Represents clients in all steps of processes necessary for non–residents to obtain temporary or permanent immigration status in U.S. before the
    • Immigration and Naturalization Service
    • Department of Labor
    • State Department
    • United States Information Agency
    • All other Relevant Agencies.
  • Prepares immigration related petitions and applications in the U.S., and assists with visa application procedures at U.S. consulates abroad
  • Represents companies of all sizes, from start–ups to established multinationals, and has worked with employers and aliens in a broad variety of high tech, scientific, manufacturing, academic and other fields.
  • Files petitions for “H–1B” temporary professional workers and “L–1” intracompany transferees, and related “labor certification” and permanent residence matters.
  • Works with employers having large numbers of foreign national employees to develop cost efficient, effective strategies for high volume processing of immigration petitions and applications.
  • Particularly successful in complex matters involving temporary and permanent classification for “aliens of extraordinary ability” and “outstanding researchers,” the “national interest waiver” of labor certification and waiver of the 2–year home country residence requirement for “J–1” exchange visitors.
  • Successfully represented foreign musical artists seeking to tour the U.S. in concert and persons who have fled persecution in their home countries to seek political asylum in the U.S.
  • Extensive prior experience in commercial litigation.
EDUCATION
Dartmouth College, B.A. History and Economics (1980)

Northeastern University School of Law, J.D. (1989)

BAR AND COURT ADMISSIONS
Supreme Judicial Court of Massachusetts

United States District Court for the District of Massachusetts

United States Court of Appeals for the First Circuit

PROFESSIONAL INVOLVEMENT
  • Active member of the American Immigration Lawyers Association at national and local level
  • Regularly speaks to business and academic groups on immigration issues
COMMUNITY INVOLVEMENT
  • Serves as Treasurer and as Board Member of the Political Asylum/Immigration Representation Project (PAIR), a nonprofit organization which coordinates pro bono representation among major Boston law firms in political asylum and related matters
  • Elected member of Planning Board of Town of Medfield, Massachusetts
  • Former Board member, Treasurer and Secretary of Eastern New England Council of American Youth Hostels, Inc.
HONORS
  • Pro Bono Attorney Award, for Dedication and Commitment to Human Rights, Political Asylum/Immigration Representation Project, May 1996
RECENT SPEECHES AND CONFERENCES
  • Featured Lecturer, “Permanent Residency and The Labor Certification Process,” American Immigration Lawyers Association (AILA) Immigration Law Basics Conference, March 3, 2000, Boston Massachusetts
  • Featured Lecturer, “Employment-Based Immigrant Visas - Labor Certification,” Mass. Continuing Legal Education  (MCLE) Immigration Law Basics Seminar, January 23, 2001, Boston, Massachusetts
RECENT PUBLICATIONS
  • Lead author, Chapter 4, “Specialty Occupation Professionals” (a detailed discussion of the H-B program), Business Immigration Law:  Strategies for Employing Foreign Nationals, Law Journal Press, New York, New York, 2000.
  • Author, "Section 10: The Labor Certification Process, A Step by Step Practical Outline," Immigration Law Primer, Massachusetts Continuing Legal Education, Boston, Massachusetts, January 2001.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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