There’s nothing worse than preparing to file your client’s adjustment application only to realize that the spouse, who has been working at the company since its inception, and is listed as an employee on all of the L renewals, failed to timely renew their work authorization or had a lapse in their work authorization due to USCIS’s failure to timely adjudicate their application, and therefore has well-documented gaps of “unauthorized” employment. You might assume they are barred from adjustment under § 245(c)(2), but don’t freak out just yet.
What if we told you that your L-2 spouse clients (and your E-2 spouse clients) never needed work permits to begin with? What if we told you that we told this to an Assistant U. S. Attorney in the case of Nunez v. Richardson, 19-cv-60732-RKA (S.D. Fla.), and USCIS folded like Marie Kondo, and then granted two adjustment applications that had been denied almost 5 years prior? You might think we’re lying, but it’s the truth! The truth is that L-2 and E-2 spouses are authorized to work incident to status, even if USCIS does not treat them as such.
Traditionally (as revealed by intensive regulatory history research), L-2 and E-2 spouses were required to apply for work authorization by the regulations. In fact, there was even a time when L-2 spouses were outright barred from even applying for work authorization. USCIS is even so bold as to suggest that our L-2 spouse clients need a category (a)(18) work permit, and that our E-2 spouses clients need a category (a)(17) EAD.
Well, Congress didn’t like this state of affairs and decided to give those categories of spouses employment authorization incident to status. See INA § 214(c)(2)(E), as enacted by Act of Jan. 16, 2002, Pub. L. No. 107-125, 115 Stat. 2403, and INA § 214(e)(2), as enacted by Act of Jan. 16, 2002, Pub. L. No. 107-124, 115 Stat. 2402. (We wonder who lobbied for these beautiful diamonds to be snuck into the INA’s rough.) To add another twist to this convoluted state of affairs, the EAD categories that USCIS demands that we apply for don’t even exist. See 8 CFR §§ 274a.12(a)(17)–(18) (“Reserved”). The Board of Immigration Appeals rejected this nonsense long ago in In re Do Kyung Lee, 2013 WL 6269308 (BIA Nov. 5, 2013), and so should you.
Basically, although there is a lot more to this ShengShou speed cube than a blog post can unwind, with a pair of super decoder glasses and your rules of civil procedure, you too can make USCIS fold like Robert J. Lang. And at the same time, urge your business, university and association clients to ask USCIS to do the same by signing on to this letter by COB March 19th.