At last - spouses of E-2 and L-1 visa holders have the automatic right to work
November 12, 2021
One of the many absurdities of U.S. immigration law has been the requirement that the spouses of L-1 (intra-company transfer) and E-1/2/3 (treaty trader/treaty investor/Australian specialized occupation) visa holders be required to obtain a work authorization card prior to being permitted to work in the United States.
As dual-income couples are the norm nowadays, the ability of both foreign spouses to work when one is transferred to work in the United States has been a critical factor in the decision of couples whether to accept a work transfer. Perhaps understanding this, Congress explicitly permitted such spouses to work in the USA with the introduction of Public Law 107-124/125 in 2022 which states that the Attorney General “shall authorize the alien spouse to engage in employment in the United States”. “Shall” is generally understood to mean “will” in this context and the legislation includes no language of discretion (e.g. “may”) - hence the expectation that the legislation automatically permits such spouses to work. Unfortunately, back in 2002, USCIS decided that this authorization wasn’t automatic, but rather would require the spouse to specifically apply for a work authorization document, and only when the card was issued, could the spouse engage in employment. The fee was $120 and in 2002 the INS (predecessor to USCIS) was required to process these applications within 90 days. Fast forward to 2020 and the fee is $410 and USCIS does not process work authorization applications in 90 days - 9 months is more the norm.
Practically speaking, this has meant that couples must take an income hit as one is prohibited from working until their work authorization application has been adjudicated. Even worse, EADs expire after either 12 months or 24 months, and the renewal application can only be filed 6 months prior to expiry. As these renewal applications are not processed before the foreign spouse’s existing authorization expires, the foreign spouse must be furloughed/laid off by their employer until the renewal is approved. This is in spite of the fact that a USCIS officer spends approximately 20 minutes adjudicating a work authorization application according to a recent forum post. This is the kind of problem that is maddening - couples are forced to ride an emotional roller-coaster of temporary redundancy due to bureaucratic inefficiency.
Almost exactly 20 years after USCIS created this problem, they’ve agreed to solve it. In response to a lawsuit (Shergill v. Mayorkas), USCIS now accept that the spouses of L-1 visa holders are permitted to work incident to status, which means:
L-2, E-2 and some H-4 spouses can take up employment as soon as they enter the USA in L-2 status (the status afforded to L-1 visa holders). This will commence once CBP updates their systems to distinguish L-2 spouses from the children of L-1 visa holders, who are also granted L-2 status, but are not permitted to take up employment in the USA.
Those already in the USA in L-2, E-2 or H-4 status who have a pending application to renew their employment are considered to have their work authorization extended for a period of 6 months beyond the date of their current employment authorization expiration.
It’s been 20 years, but finally USCIS has addressed an absurdity with out outsized impact on the lives of foreign couples in the United States.
