INS issues guidance on employment authorisation for E and L non-immigrant spouses

The US Immigration and Naturalization Service has released guidance on the application procedures which will enable the spouses of temporary workers holding L (intracompany transferees) and E (treaty investors/traders or employees) employment visas to secure 'open market' employment authorisation in the US. The INS guidance is effective immediately. The procedures are as follows:

Application:

Spouses of L and E visa holders must complete Form I-765, Application for Employment Authorisation, which may be downloaded from the INS website at (www.ins.usdoj.gov/graphics/formsfee/forms/I-765.htm).

On question 16 of the application form, the applicant should indicate "spouse of E non-immigrant" or "spouse of L non-immigrant."

The Application for Employment Authorisation may be filed simultaneously with an Application to Extend or Change Non-immigrant Status, Form I-539.

Supporting Documents Required:

The INS must confirm that the applicant is accompanying or following to join a spouse who holds E or L status. We recommend that the following documents should be submitted with the I-765 application form:

• copy of marriage certificate
• copy of I-94 arrival-departure record for both applicant and spouse
• copy of L or E visa stamp in passport for both applicant and spouse
• if there has been a change of status to E or L classification subsequent to arrival in the US, submit a copy of the petition approval notice, form I-797
• two (2) recent photographs with a white background 1.5 x 1.5 inches
• Form I-765 Signature Card (obtained from the local INS office) may be required although some Service Centers are capable of scanning the signature from the application form

Filing Fee:

The application must be submitted with the $120 filing fee. (This was increased on 19th February 2002 from the previous fee of $100.)

Where to file:

The application should be filed at the INS Service Center with jurisdiction over the dependant spouse's place of residence. (The addresses are indicated on page 6 of the Form I-765 instructions.) The only exception is where the Application for Employment Authorisation is being filed concurrently with the principal spouse's I-129 Petition for E classification; in this case it may only be filed at the California or Texas Service Centers.

Processing time:

The INS has up to 90 days from the date the Service "receives" form I-765 to adjudicate the application. The INS will generate a filing fee receipt notice on form I-797 when it has "received" the application. (At some INS Service Centers there can be delays of several weeks from the date that the application is actually delivered (e.g. by Federal Express) and the date that the INS Service Center acknowledges receipt of the application by generating the I-797 fee receipt notice.) The actual processing time will vary at the different Service Centers. According to their most recent processing time reports, adjudication time is as follows: California - approximately 100 days; Vermont - less than 60 days, Texas - approximately 120 days (over 25,000 cases pending), and Nebraska – approximately 75 days.

If the applicant does not receive the approval notice, Form I-766, within 90 days from the date the application was received by the INS, he or she may go to the local INS District office and obtain an employment authorisation document valid for 240 days.

Duration of Employment Authorisation:

The period of employment authorisation for spouses of E and L non-immigrant will be linked to the period of admission and/or status of their spouses but it may not exceed two years.

For further information, please contact:

Julia Onslow-Cole, Partner and Head of Global Immigration

Phone: +44 (0)20 7367 2733

Email: julia.onslow-cole@cms-cmck.com

Liane Cooney, US Immigration Lawyer

Phone: +44 (0)20 7367 3618

Email: liane.cooney@cms-cmck.com