Employment Authorization for Spouses of Certain Non-Immigrant Visa Holders

Summer 2015 Article

Employment Authorization for Spouses of Certain Non-Immigrant Visa Holders

It is common knowledge that in order to work lawfully in the United States, a foreign national is first required to obtain a valid work visa. However, not many people know that accompanying foreign spouses holding a derivative visa need to take an additional step before they may seek employment in the United States, even when their visa status allows in principle to work.

The law provides that "the Attorney General shall authorize the alien spouse to engage in employment and provide the spouse with an employment authorized endorsement or other appropriate work permit". This work permit, called Employment Authorization Document ("EAD"), may be obtained by applying upon the foreign spouse's admission into the United States in valid derivative visa status.

Only some visas allow foreign spouses of the principal visa holder to work. Among those, the L-1 (intracompany transferee), E-1 (treaty trader) and E-2 (treaty investor) are the most common[2]. On the other hand, spouses of H-1B non-immigrant workers are generally not authorized to work, with a very limited exception discussed below. This element should be considered upon determining which employment visa suits the beneficiary and his/her family's needs.

THE EAD APPLICATION PROCESS

Spouses of certain non-immigrant visa holders may apply, upon their admission into the United States, for an EAD from U.S. Citizenship and Immigration Services (USCIS). The application process is fairly straightforward. However, it requires some time to process (up to ninety days), during which time the applicant is not authorized to work. This means that any work activity conducted without such EAD, or while the application is pending, is unlawful and constitutes a violation of status. The consequences for such an illegal employment are harsh, and can lead to the denial of an application for adjustment of status to that of a lawful permanent resident[3].

Once approved, the EAD allows employment with any employer[4], but is limited to the period stated on the EAD. The processing time for subsequent renewals of a previously issued EAD is also up to ninety days. Also, a new EAD cannot be backdated to the expiry date of a prior EAD. Therefore, it is important to calendar the expiry date and allow sufficient time[5] to renew the document without any gaps in employment authorization. In fact, during the period between the expiration of the old EAD and the issuance of the new EAD, the non-immigrant spouse is not allowed to work.

EXCEPTION FOR E-2 VISAS, WITH A CAVEAT

On November 5, 2013, the Board of Immigration Appeals (BIA)[6] issued an unpublished decision holding that the respondent, the spouse of an E-2 treaty investor, was not required to obtain an EAD to work lawfully in the United States[7]. The issue arose when the spouse of the treaty investor applied for adjustment of status and was denied for unlawful employment, because the spouse had worked for more than 180 days in the United States without having obtained an EAD first. Upon appeal, the reasoning of the BIA's decision was that while the immigration regulations explicitly require spouses of E-1 traders to obtain an EAD, they are silent as to spouses of E-2 investors. Therefore, the BIA held that an E-2 spouse is authorized to engage in employment regardless of whether or not he or she possesses a valid EAD.

Please note however that an unpublished decision, although persuasive, is not binding on any Court or the USCIS. Therefore, spouses of E-2 investors should continue to comply with USCIS instructions for obtaining an EAD before they engage in employment.

EAD FOR DEPENDENT SPOUSES OF CERTAIN H-1B VISA HOLDERS

In general, spouses of H-1B non-immigrant workers, holding an H-4 derivative visa, are not allowed to obtain an EAD or seek employment in the United States.

However, effective May 26, 2015, the Department of Homeland Security (DHS) extended eligibility for employment authorization to certain spouses of H-1B non-immigrants who are seeking employment-based lawful permanent resident status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States. This is, however, a very limited exception, and the large majority of H-4 derivative visa holders are still not allowed to work in the United States.

CONCLUSION

Before applying for a work visa, a prospective non-immigrant worker and the sponsoring employer should consider whether the worker's spouse also needs to work. Not all work visas allow foreign spouses to engage in work activity in the United States. Also, to avoid any potential issues, a foreign spouse will necessarily have to wait until he or she receives an EAD before working in the United States.

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This article is for information purposes only and does not constitute legal advice. The information contained herein may be outdated or incomplete, and shall in no way be taken as an indication of future results. The transmission of this article is not intended to create, nor its receipt constitutes, an attorney-client relationship between sender and receiver. You should not act on the information contained in this article without first seeking the advice of an attorney.



[1] Stefano Abbasciano, Esq. (stefano.abbasciano@vallalaw.com) Associate Counsel at Valla & Associates Inc., P.C. (www.vallalaw.com).

[2] In no event are children of any visa holders authorized to work; they can, however, attend school.

[3] Commonly known as "Green Card".

[4] The principal visa holder, on the other hand, can only work for the sponsoring employer, on the basis of his or her visa status, with no need to obtain an EAD.

[5] A renewal application can be filed up to 120 days prior to the expiration of the prior EAD.

[6] The BIA is the highest administrative body for interpreting and applying US immigration laws.

[7] Matter of Lee (11/5/2013)