New Guidance on Employment Authorization for E and L Spouses
Everyone needs permission from the US government to remain in the US and to work in the US. US employment-based immigration laws govern who and how one can obtain work permission, i.e., work visas. The ability to remain in the US and the ability to work in the US however are not necessarily entwined. Spouses of individuals who receive work visas are given visas that allow them to accompany the principal visa holder, i.e., the worker, but does not always allow them to work.
Spouses of E-1 (treaty trader), E-2 (treaty investors), E-3 (specialty occupation individuals who are citizens of Australia) and L-1 (intracompany transferees who are executives, managers, or individuals with specialized knowledge of the company) may receive E-2 and L-2 dependent visas respectively. If these individuals wanted to have employment authorization, these individuals would have to file separate applications for an employment authorization document (EAD). Since the COVID pandemic, the processing times for EAD applications have gotten so bad, that a lawsuit was brought against the US Citizenship and Immigration Services (USCIS). In deposition testimony, USCIS admitted that the processing times were much longer than usual due to staffing issues. In a settlement of the lawsuit, USCIS revised its policies and indicated that spouses of E-1, E-2, and L-1 visa holders could work incident to their status. That is, the spouses would no longer need to apply for the EADs to have work authorization. While this was welcome news, it was still unclear as to how such individuals would be able to prove to prospective employers that they did have employment authorization when other rules required them to show proper verification of their employment authorization before they could work.
As of January 31, 2022, and most recently confirmed but the government, the US Customs and Border Protection (CBP) updated its systems to offer individuals entering the US with the following designations:
E-1S – Spouse of E-1
E-1Y – Child of E-1
E-2S – Spouse of E-2
E-2Y – Child of E-2
E-3S – Spouse of E-3
E-3Y – Child of E-3
L-2S – Spouse of L-1A or B
L-2Y – Child of L-1A or B
Those with E-1S, E-2S, E-3S, and L-2S designations may now work without applying for separate EADs. They can now show these designations to prospective employers as proof that they have employment authorization. CBP has indicated that individuals entering the US on or after January 31, 2022 should be subject to this new system. As for individuals who were in the US prior to January 31, 2022, they would not receive these new designations until they reenter the US after traveling abroad any date after January 31, 2022. The official response is the local CBP offices will not change one’s designation without the reentry. As a practical matter, individuals who are eligible for these new designations should check their I-94 records after their next entry into the US to ensure that CBP has properly admitted them into the US.
The above information has been provided for educational purposes only. Please check with your Clark Lau LLC attorney to see whether the above applies to your specific circumstances. Stay tuned for more information.