Spousal Work Authorization for Non-Immigrant Visa Holder

Robert L. Reeves is Board certified by the State Bar of California as an Immigration and Nationality Law Specialist and is the CEO of Robert L. Reeves and Associates, a Professional Law Corporation.

On January 16, 2002, President George Bush signed two new immigration regulations into law. H.R. 2277 and H.R. 2278 are specific bills which permit the spouses of treaty traders (E-1), treaty investors (E-2), and intra-company transferees (L-1) to obtain work authorization while in the United States. Unfortunately, these new regulations do not provide comparable work authorization for spouses of other nonimmigrant employment classifications (i.e., H-1B, O-1, etc).

Formal guidance on filing procedures for the newly authorized employment authorization for spouses of E and L status holders is now available for the Vermont Service Center (VSC) only. As of this writing INS form I-765, Application for Employment Authorization, will be the correct form used for spouses of employment authorized individuals.

The specific language of the newly created immigration regulation states:

In the case of an alien spouse admitted under section 101(a)(15)(L), who is accompanying or following to join a principal alien admitted under such 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.

A stated, only the VSC has issued guidance on how to properly complete and file the Application for Employment Authorization. The American Immigration Lawyers Association (AILA) Liaison Committee has reported on the VSC’s instructions for filing work authorization for spouses of E-1 treaty traders, E-2 treaty investors, and L-1 intra-company transferees. They will accept all I-765 applications for L-1 spouses who are within its jurisdictional boundaries. However, for E-1 and E-2 spouses the filing must be independent of the principal E-1 or E-2 application. If E-1 or E-2 spouses are filed concurrently with the principal beneficiary then the spousal application must be filed with the Texas Service Center (TSC).

The VSC state that the TSC has primary jurisdiction over I-129 petitions for E principles. Consequently, the VSC suggests spouses in this category should file their Form I-765 with the TSC rather than in Vermont.

H.R. 2278 has other important elements in regards L-1 intra-company transferees. The new rule shortens the continuous employment abroad requirement for principal beneficiaries of blanket L-1 petitions. The applicants for blanket L-1 petitions do not have to show continuous work abroad for one year; instead the requirement has been cut to six months.