USCIS Unilaterally Changing the Way Certain Foreign Spouses Obtain Work Authorization

Agency yet again violates Administrative Procedure Act to mitigate backlog criticism

By Robert Law on March 23, 2022

A common, though unsubstantiated, refrain from opponents of President Trump’s immigration policies was that U.S. Citizenship and Immigration Services (USCIS) had erected an “invisible wall” by allegedly slow-walking the approvals of immigration benefits or even denying otherwise eligible aliens. Yet, more than a year into the Biden presidency the backlogs for nearly every immigration benefit are worse, despite having Ur Jaddou, one of the Trump administration’s biggest critics, now leading USCIS.

Faced with growing backlogs, especially for employment authorization documents (EADs or work permits), and mounting criticism from business immigration groups, USCIS is cutting procedural corners to give the spouses of E nonimmigrant treaty traders and L nonimmigrant intracompany transferees automatic work authorization. While this policy shift might appear at first glance to be a minor, niche issue, it reflects a growing trend in the Biden administration to ignore the requirements of the Administrative Procedure Act (APA) to implement its immigration agenda.

Through two separate bills passed on the same day (January 16, 2002), Congress granted the spouses of E and L nonimmigrants the ability to work in the United States as derivatives. Aliens authorized to work fall into three categories: incident to status, incident to status for a particular employer, or must apply for work authorization. An alien authorized to work incident to status, such as a lawful permanent resident or asylee, is permitted to work in the United States without any restrictions, and evidence of holding such an immigration status is proof of work authorization. Similarly, an alien authorized to work incident of status for a particular employer, such as an E-1, L-1, or H-1B, is work-authorized by virtue of holding that immigration status but may only lawfully work for the petitioning employer. The third category, aliens who must apply for work authorization, fall into categories of aliens who seek a discretionary EAD from USCIS subject to any regulatory restrictions or EAD validity limits the agency establishes. This third category is not entitled to an EAD and, in theory, a USCIS adjudicator has the discretionary authority to deny the work permit even if the alien satisfies the underlying criteria.

In response to the new law, the Immigration and Naturalization Service (INS) issued a memo, known as the Yates Memo, requiring the spouses of E and L nonimmigrants to apply for work authorization so that adjudicators could verify that the alien is a derivative spouse of an E or L nonimmigrant. The Yates Memo further noted that regulations were being drafted to add the spouses of E and L nonimmigrants as a category of aliens eligible to work incident to status.

Those regulations never were drafted, but in a November 21, 2021, policy alert, USCIS unilaterally changed its interpretation, moving these alien spouses to the incident-to-status classification. Remarkably, that policy memo concedes that the work authorization regulations have not been amended in the intervening 20 years.

And because USCIS did not follow the APA in making this change, the policy shift could not be implemented immediately because there was not a corresponding form that distinguished the spouses of an E or L nonimmigrant, who can work, from the derivative children, who cannot work. Through a March 18, 2022, press release, USCIS reveals that it has been working behind the scenes with U.S. Customs and Border Protection to have officers insert a specific code on the Form I-94, Arrival/Departure Form, that specifies whether the derivative of an E or L nonimmigrant is a spouse or child.

As a result, USCIS is now saying that the spouses of E and L nonimmigrants just need to show an employer their I-94 to begin working instead of filing a Form I-765 (plus paying a fee) to request an EAD and then not begin working until the actual work permit (Form I-766) is approved.

Director Jaddou has apparently decided that it is worth forgoing the fee funds associated with the EAD applications from this population in order to mitigate the criticism that the immigration bar was vocalizing about worsening backlogs. The underlying objection here isn’t whether it's permissible to treat these spouses as work authorized incident to status (it is), but that regulations are required to implement it lawfully. The Biden administration’s disregard of the analysis laid out in the Yates Memo undermines the APA and the integrity of the regulatory process.