E & L
Spousal Employment
(Questions
and Answers)
*******************************************
On January 16, 2002, President Bush signed into law Public Laws 107-124 and
107-125, which permit the spouses of persons in E-1,
E-2, and L
status to obtain employment authorization in the United States.
Also included was a provision that reduces the amount of time that an L-1
Intercompany transferee must work for the employer, or a subsidiary or affiliate
of the employer, abroad in order to qualify for L-1 status, when the employer is
in possession of a blanket L petition.
On February 22, 2002, the INS issued a document 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.
The following are questions and answers concerning the laws' provisions, and
the methods and procedures for applying for work authorization.
1. Who is permitted to obtain work authorization under these new laws?
The laws permit the spouses of E-1 treaty
traders, E-2 treaty investors and L-1
Intercompany transferees to apply for employment authorization.
The spouses must be in valid E or L status.
Children of E's and L's are not permitted to work.
2. How does an eligible spouse apply for employment authorization?
The spouse must submit form
I-765, together with a filing fee of $120, and the following documents:
- The I-94s of both the
principal and the spouse showing that they were admitted to the United
States in E or L status, or that they received a change of status to one of
these categories while in the US.
- If available, a copy of the
E or L petition approval notice from the INS, filed on behalf of the
principal alien.
- Two (2) residency-type
photographs of the applicant.
The
Immigration Service has recommended that applications for spousal employment
authorization under Pub. L. No. 107-124 be identified as “Spouse of E
Non-Immigrant” while those under Pub .L. No. 107-125 be marked as “Spouse of
L Non-Immigrant.” Question #16 on
form I-765, Application for Employment Authorization, should be completed with
“(a)(17)” for E spouses and “(a)(18)” for L spouses.
3. Where is the application sent?
While the I-765 should normally be submitted to the Service Center that has
jurisdiction over the applicant’s place of residence, the I-765 may be
submitted concurrently with a non-immigrant visa petition (form
I-129) for the principal alien. However,
in the case of an E-1 or an E-2, the visa petition must be filed
with either the California or the Texas Service Centers.
In that case, the I-765 must be filed at the same Service Center as the
I-129. In addition, the memo
permits the I-765 to be filed concurrently with form
I-539, which is the application for an extension or change of
nonimmigrant status.
4. For how long will
the Employment Authorization Document (EAD) be valid?
The EAD will be issued for the period of admission/status of the principal
alien, not to exceed two years. Extensions
may be applied for to coincide with the principal alien’s length of authorized
stay in the US.
5. How long will it take to adjudicate the I-765?
By regulation, the INS must grant work authorization within 90 days after
receiving a valid application. If
the applicant does not receive the EAD within 90 days, he/she can go to an INS
District Office and receive an EAD that is valid for up to 240 days.
6. How does the law change the period of time that an L-1 alien must have
been employed abroad?
The law shortens the period of time for a person to qualify for L-1 from one
year to six months, but only if the employer has a "blanket" L
petition approved by the INS. Otherwise, the employee must work abroad for the
employer or a related company for one year before qualifying for L status.
7. Can such a person apply for permanent residence as a multinational
executive or manager on the basis of his or her six-month employment abroad?
No. The law applies only to
persons in non-immigrant L status. In
order to qualify for permanent residence as a multinational executive or
manager, he/she must still meet the "one-year" requirement. Therefore, applicants should keep in mind that if they enter
the US in L status using the new "six-month" law, they would most
likely be required to submit an Application for
Labor Certification in order to obtain permanent residence.
The waiver of the labor certification requirement, as an international
manager or executive, would not be available for these employees.
Legal
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