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Spousal Work Authorization Bills (L and E visas)

Authorization bills (H.R. 2277/2278), which allow E and L spouses to obtain employment authorization. H.R. 2278 provides for work authorization for nonimmigrant spouses of L-1 intracompany transferees. Multinational companies wishing to move high-level and specialized knowledge workers from overseas to provide similar services in the United States may use the L intracompany transferee classification. Prior to the enactment of this measure, spouses of Ls were prohibited from working, unless accorded a separate nonimmigrant classification that would permit them to work. H.R. 2278 also includes a provision that would reduce the one-year employment requirement for L-1s coming in under blanket petitions to six months. Typically, L-1 nonimmigrants are required to have been employed continuously by a parent, subsidiary or other affiliate of the petitioning company for one of the three years preceding admission to the United States. Under the terms of the legislation, L-1s not coming in under a blanket would continue to have to meet the one-year requirement.

H.R. 2277 similarly provides work authorization for spouses of E nonimmigrants (treaty traders/investors). In the past, there has been no mechanism for spouses of E-1 and E-2 nonimmigrants to work, although the Immigration and Naturalization Service (INS) has generally not attempted to remove E spouses who have been employed. Still, such individuals would not normally be able to change or adjust status. Additionally, employers who have employed E spouses without authorization could be subject to sanctions.

Please note that although the provisions will be effective upon enactment, spouses must await instructions from the INS before they begin working. Both H.R. 2277 and H.R. 2278 provide that INS "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." In most instances, INS requires employment authorization documents (EADs) for work-authorized individuals, unless they are beneficiaries of approved employer-specific petitions. An EAD is obtained by filing Form I-765, Application for Employment Authorization. Advocates for H.R. 2277 and H.R. 2278 have suggested that E and L spouses should not have to obtain EAD cards, since the underlying petitions are employer-specific, and the backlog on EAD processing frequently exceeds the legally-imposed limit of 90 days. Based on the language in the measures, INS would have the option to endorse the I-94 Arrival/Departure Record with a notation that the spouse is employment authorized. This was a common practice until the EAD card was introduced in recent years. It appears, however, that INS is moving in the direction of requiring EAD cards for E and L spouses. In the past, under very limited circumstances, INS has permitted certain individuals who file for employment authorization to begin work upon filing the Form I-765, rather than requiring such individuals to wait until the card is issued. This may present an additional option for INS. In the meantime, I-765 filings received by INS Service Centers are being held until INS Headquarters disseminates further instructions. INS will have to implement the provisions either through regulations or a policy directive. We have been in touch with INS and hope that this issue can be resolved quickly. While new rulemaking should not be necessary to implement these provisions, INS Headquarters personnel have not ruled out the possibility, and this could slow down implementation considerably. We would caution spouses that if they work without authorization, they could jeopardize their current and future immigration status.

Similarly, we must wait for INS and the Department of State to issue guidance to the field implementing the six-month blanket L requirement. INS has indicated that this provision may have to be implemented through rulemaking, which could result in a delay in being able to use it for several months. Also, as previously mentioned, while the new provision reduces time needed for eligibility to enter the United States under a blanket L, the one-year requirement is still in place for individual Ls. Moreover, multinational executives applying for permanent residence under a classification that does not require that an employer engage in recruitment and file a labor certification application must also meet the one-year requirement. This should be kept in mind when bringing workers in under blanket Ls who may later wish to obtain permanent residence

UPDATE
If you are bringing an employee into the U.S. on an L or E visa, you may obtain authorization for spousal employment by obtaining an Employment Authorization Document (EAD), done so by filing an I-765. The I-765 may be filed concurrently with the L or E visa, or at a later date, after the L or E has been approved. At this point, I-765ís filed at the same time as the principal E visa will be processed only at the appropriate California or Texas Service Centers, which are responsible for processing all E visas.

However, as of February 20, 2002, the INS is accepting applications for spousal work authorization, but is not adjudicating them. In other words, you may file the appropriate application, but the INS will not begin processing it until some yet-to-be-determined date in the near future. Spouses of L and E visa holders may not work until their EAD has been approved by the INS, so count on at least one month before the INS begins processing these applications, and another two to three months to approve the I-765.

In the meantime, consider spousal work authorization a plus for your employees holding L and E visas. This represents the first time that spouses of non-immigrant visa holders are permitted to work in the U.S. Once the EAD is approved, the spouse may work in any job for any employer willing to hire him/her. Companies that offer to sponsor spouses for work authorization can make transferring to the U.S. a more desirable option for their employees.

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