New Policy Guidance on Work Authorization for E-1/E-2 and L-2 Spouses

Washington, D.C., November 22, 2021: USCIS issued policy guidance on November 12, 2021, that confirms that E-1/E-2 and L-2 spouses are authorized to work “incident to status.” This was the outcome of settlement negotiations triggered by a federal court lawsuit demanding that USCIS essentially follow its own regulations.

The laws in question are found at section 214(e) and section 214(c)(2) of the Immigration and Nationality Act (Act), and at 8 CFR Section 274a.12(c)(2), Sections 214(e) and 214(c)(2), passed into law in January 2002 pursuant to Public Law 107-124 and Public Law 107-125, provided that E-1 and E-2 spouses, and L-2 spouses, were authorized to work in the United States with an “open” work permit upon admission as an E or L non-immigrant spouse.

Since 2002, the INS, which later became USCIS, has required E and L spouses to file for work authorization on Form I-765 before being authorized to work. That additional application, however, was never required by the Sections 214(e) and 214(c)(2), which are controlling provisions of the Immigration and Nationality Act.

USCIS finally relented and accepted its unfounded requirements through litigation that settled in early November, 2021.

The new policy guidance formalizes the updated practice: E and L spouses are authorized to work in the United States “incident to status” with an “open” work permit. That means that they are allowed to work immediately upon their admission to the U.S. They are not required to file applications for work authorization on Form I-765.

The U.S. Social Security Administration had already adopted this rule in its official guidance. States will also have to adapt their practices. For example, states such as Texas require an E or L spouse to provide a copy of their approved Employment Authorization Card (Form I-765) in order to obtain a state Driver’s License. This practice is now obsolete and should be challenged if it is not resolved promptly.

Left unstated are questions such as: refund of USCIS filing fees for Form I-765 applications, or determinations of work without authorization for E and L spouses in the Adjustment of Status process. Donoso & Partners suspects that USCIS will not be forthcoming on refunding filing fees, and will grudgingly have to accept that work by E and L spouses does not constitute (and since January 2002 has never constituted) work without authorization for purposes of compliance with U.S. immigration laws in relation to admissibility (including admissibility under Adjustment of Status or Consulate Processing).

Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.