INS Guidance on Employment Authorization for Spouses of E and L Visa Holders and Blanket L Visa Petitions

As reported earlier on Greenberg Traurig’s Immigration website, the President recently signed into law two new pieces of legislation which amend the Immigration and Nationality Act ("INA") by authorizing the employment of spouses of E-1 treaty traders, E-2 treaty investors, and L-1 intracompany transferees, as well as reducing the amount of pre-employment an alien needs to qualify under a Blanket L from one year to six months.

William Yates, Deputy Executive Associate Commissioner of the INS, recently issued a memo providing guidance on the INS’s implementation of these new laws. This memo is immediately effective. The memo states that in order to obtain employment authorization, an individual must apply for an Employment Authorization Document ("EAD") by filing a Form I-765 with the Service Center having jurisdiction over the individual’s place of residence. However, if a person concurrently files an I-129 requesting dependent E-1 or E-2 status and an I-765 requesting an EAD, they must file this application at either the California or Texas Service Center. The EAD will provide the spouse with "open-market" employment authorization.

The applicant must provide documentation proving their marriage to an E or L principal alien, and documentation proving they were admitted as a dependent E or L and that their spouse was admitted as a principal E or L. This documentation will normally consist of copies of a certificate of marriage, approval notices and I-94 cards. Please note that the memo does not state that applicants have to submit documentation, such as pay stubs, to show that the principal alien is maintaining E or L status.

Dependent spouses will be authorized for employment for the period of admission and/or status of their spouses, not to exceed two years. The applications for employment authorization are supposed to be processed within 90 days. In the event that the spouse does not receive the employment authorization documents within this 90-day period, he or she can go to a district office and receive the document that is valid for up to 240 days.

The memo also covers implementation of the new law reducing the amount of pre-employment an individual needs under a Blanket L visa petition. The law amended the INA by adding a new sentence which states that the one year period of continuous employment with the related foreign entity required under such section is reduced to a 6 month period if the importing employer has filed a blanket petition and met the requirements for expedited processing of aliens covered under the petition. The memo states that this new standard should be applied to any currently pending petitions.

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