GUIDANCE ON WORK AUTHORIZATION FOR SPOUSES OF E AND L VISA HOLDERS

On January 16, 2002, President George Bush signed into law two new immigration bills:

1) Public Law No 107-124, which allows spouses of ‘E’ visa holders to work in the United States. Currently, spouses are allowed to accompany the principal visa holder for the length of their assignment, but are banned from working.

2) Public Law No 107-125, allows spouses of ‘L’ visa holders to work in the United States. Currently, spouses are allowed to accompany the principal visa holder for the length of their assignment, but are banned from working. The new rule will come as a welcome measure to many as most families depend on a dual income.

This Bill has an added proviso for facilitating transfer/s of certain L-1 workers to the U.S. At the moment, the employee whether in executive, managerial or specialized knowledge (cadre) should have worked for the foreign company for one year within the three years prior to coming to the U.S in order to meet the criteria for an L-1. This bill would reduce that period from one year to six months for those companies sending their executives/managers/workers with specialized knowledge and skills, under the L-1 blanket scheme.

On February 22, 2002, the INS issued a Memorandum entitled ‘Guidance on Employment Authorization of E and L Spouses and for Determinations on the Requisite Employment Abroad for L Blanket Petitions’, to implement the laws. Under this existing scheme, the applicant spouse must submit the I-765 Application for Employment Authorization, with the required filing fee of $340, to the USCIS Service Center that has jurisdiction over his/her place of residence.

The Memorandum also permits an I-765 to be submitted concurrently with a nonimmigrant visa petition for the principal. In the case of an E-1 or an E-2, the visa petition must be filed only with either the California or the Texas Service Center and accordingly, the I-765 must be filed at the same Service Center as the I-129. Additionally, the memorandum permits the I-765 to be filed concurrently with the I-539 - application for an extension or change of nonimmigrant status.

The applicant should submit the following documents together with the I-765:

(i) The I-94s of both the principal and the spouse showing that they were admitted to the U.S. in E or L status, or received a change of status to one of these categories while in the U.S.

(ii) A copy of the approval notice of the nonimmigrant visa petition filed on behalf of the principal, if available.

(iii) A copy of the marriage certificate (not compulsory, but recommended).

(iv) Two photographs of the applicant (which meet regular INS specifications).

(v) A filing fee of Rs 120/-.

The applicant should note on the I-765 that he/she is the ‘spouse of E/L nonimmigrant’ as appropriate.

The INS will issue the initial EAD for 2 years and the regulations require that it be issued within 90 days of receipt of a valid application request. At the end of this two-year period the applicant may reapply for a new EAD.

INS Headquarters has confirmed that applications for L-2 spousal employment under Pub .L. No. 107-125 can be made either at the Service Center having jurisdiction over the applicant’s residence, or the Service Center having jurisdiction over the principal L-1 spouse’s file, pursuant to a Centralized Filing Agreement with that Service Center. In addition, the Texas Service Center has recommended that applications for spousal employment authorization under Pub. L. No. 107-124 be identified as “SPOUSE OF E NONIMMIGRANT” while those under Pub .L. No. 107-125 be marked as “SPOUSE OF L NONIMMIGRANT.” Item (16) on the Form I-765 application for employment authorization should be completed with “(a)(17)” for E spouses and “(a)(18)” for L spouses.