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In a raft of recommendations made by the Cato Institute to deregulate US immigration, the thinktank called for the spouses of L1, E1, E2 and E3 visa holders to be allowed to work without having to apply for an Employment Authorization Document (EAD).
The US L1 visa program enables multinational organizations to transfer certain skilled foreign employees to the United States – including managers, executives and skilled workers with specialized knowledge.
E1, E2 and E3 visas allow US entry for citizens of countries with whom America has a ‘treaty of commerce and navigation’ to carry out substantial trade (E1), develop and direct the operations of a business (E2) or perform services in a speciality occupation if a person is a national of Australia (E3).
Derivative status
Under current US immigration rules, the spouses of L1, E1, E2 and E3 visa holders are granted derivative status – an immigration status gained through a US visa holder.
The status requires United States Citizenship and Immigration Services (USCIS) to authorize a foreign national to engage in employment in the US and issue a spouse with an ‘employment authorized’ endorsement or another suitable US work permit.
The rules clearly state that while USCIS must issue a work permit separately, the agency is required to authorize E and L2 spouses to work whenever they are in the US without such a permit.
According to the Cato Institute, the Social Security Administration (SSA) recognizes the eligibility of spouses for employment based on their admission as an E or L2 spouse. A social security card is then issued by the SSA, authorizing them for work under Department of Homeland Security (DHS) guidelines.
While a passport admission stamp along with a handwritten notation specifying the authorized period of stay by a US immigration official should suffice as authorization to work, USCIS regulations seemingly state that E or L2 status does not suffice to prove authorization to work, according to section M-274 of the agency’s Handbook for Employers.
USCIS Handbook for Employers needs amending
The Cato Institute argues that USCIS should amend its regulations so that spouses of E and L1 visas are authorized to work based on their relationship with a primary US visa holder. This would prevent perceived violations of their status and losing eligibility to change or adjust their status.
“Agency action is necessary because as long as the USCIS’s M-274 Handbook for Employers is left unchanged, the Justice Department’s Immigrant and Employee Rights (IER) unit could penalize employers who follow it,” according to the Cato Institute.
“Employers that decline to accept an unexpired foreign passport containing an L2 or E dependent’s entry stamp issued by DHS would be engaging in unfair documentary practices related to verifying the employment eligibility of employees,” the thinktank said.
Based on the interpretation of the rules by the SSA, L2 or E visa spouses could have a claim for unfair documentary practices should an employer refuse employment for failing to produce a USCIS EAD.
Based on policy memorandum and later by regulation, the Cato Institute argues that USCIS should ‘align its interpretation to that of the SSA and explicitly provide L2 and E spouses employment authorization incident to their status.’
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