Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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When can husbands and wives (spouses) get work authorization/permits on nonimmigrant or temporary visas?

Q: I know that my work visa (H-1B, L-1, E-1/E-2, E-3, O-1, TN, P-1/P2/P-3, I etc. – even sometimes F-1s and J-1s when work is permitted) lets me work while in the US. But when/in what circumstances can my spouse here on the family (“derivative”) version of this visa work?

A: The answer depends on the type of visa – and in most cases, the ability to work while on the visa doesn’t automatically come with getting the visa itself in the way it does for the primary/principal visa holder. A separate application would be required here for an Employment Authorization Document (“EAD” – what many people call a “work permit”) – which provides the ability to work. Let’s go through this visa-by-visa:

  • H-1B – In most cases, there is no way for an H-4 derivative spouse to get a separate EAD for most of the time the principal spouse is here on an H-1B. There is an exception: when a permanent residence process has been started for the principal H-1B through employment, and this permanent residence case has progressed to a certain point in the process – normally post-approval of an Immigrant Visa Petition (though a green card case begun at least 365 days before the end of the sixth year of H-1B status would be sufficient even without Immigrant Visa Petition approval). However, this exception won’t apply to the H-4 spouse of a new H-1B before an employment-based green card process for the principal H-1B has begun; such a spouse would need some type of visa of their own to permit employment.
  • L-1 – Spouses (but not children) of L-1A and L-1B visa holders present in L-2 status can apply for and obtain EADs to work in the US.
  • E-1/E-2 - Spouses (but generally not children) of E-1 and E-2 visa holders present in E-1 or E-2 status (there is no separate derivative status for the E category, spouses/children also get E-1s or E-2s) can apply for and obtain EADs to work in the US. Note that there is a Board of Immigration Appeals decision which seems to state that an E-2 spouse can work without an EAD due to the wording of the statute, USCIS has not accepted this position and we still strongly recommend that E-2 spouses seeking to work in the US. Also, there is one exception where derivative children can get work authorization: children of E-1 principles working here for the Taipei Economic and Cultural Representative Office (TECRO) with the required certification from the American Institute in Taiwan.
  • E-3 - Spouses (but not children) of E-3 visa holders present in E-3D status can apply for and obtain EADs to work in the US.
  • J-1 – Spouses and minor children of J-1 visa holders present in J-2 status where their income isn’t purely necessary to support the J-1 principal but rather is for other purposes (this can sometimes be difficult to prove in practice).
  • O-1 – Currently, there are no circumstances where a spouse or minor children of an O-1 visa holder here in O-3 status can obtain work authorization.

Q: How is the process of obtaining a Dependent Employment Authorization document handled?

A: If changing in the US to derivative status from some other status, the Dependent spouse can file the Form I-765 concurrently with (at the same time as) the Form I-539, Application to Extend or Change Nonimmigrant Status, used to change to that derivative status – they need not first wait for approval of the derivative status to file for the work authorization. The I-539 for the change of status to the qualifying derivative status must be approved before the EAD will be approved, however.

Unfortunately, there’s no way to request the Employment Authorization Document in advance of even applying for the status/entry to the US in that status.

In other words, an E-1/E-2 spouse, E-3D spouse, or L-2 spouse who has obtained their visa stamp from a consulate abroad along with the principal spouse, but has not yet used the visa stamp to enter the US, can’t apply for the EAD before first coming to the US in that status.

This may mean a period of three months or more after initial entry where the spouse cannot yet work while awaiting approval of the Employment Authorization Document.

Q: Where can a derivative spouse (or child, where applicable) with an EAD work? What kind of work can they do?

A: Really, anything they want. The EADs permitted for spouses and children of individuals on the above-listed work visas are valid for “open market employment” (meaning, someone with an EAD can work anywhere doing anything – different than the principal spouse’s visa which requires that they work in the job described for the company described to maintain valid status).

A spouse can assist the principal E-2 in an E-2 business investment, can work at the same company as an L-1 spouse in any capacity, or can work at a different company doing something completely unrelated. In theory, an E-2 derivative can even start their own separate business…though there risks to doing this because this type of EAD has certain limitations outside the control of the person holding it – see below.

Q: Does a derivative spouse (or child, where applicable) need a job offer first, before they can apply for an EAD? Are they required to work once they get an EAD?

A: No to both questions. There is no need for a derivative spouse or child who is otherwise eligible to have a specific offer of employment before applying for the EAD. Even with the EAD, there is no obligation to work – only the right to do so for as long as the EAD remains valid.

Q: Are there any limitations on these derivative EADs for spouses or children of individuals on qualifying principal work visas?

A: Yes, several:

  • The EAD will only be approved for as long as the derivative visa is valid, which in turn will only be approved for so long as the principal’s visa is valid.
  • If the principal’s visa becomes invalid (L-1 employer terminates employment, E-2 business closes), then the principal as well as derivatives are no longer maintaining status and the EAD is no longer valid – even if these have not yet expired.
  • The relationship to the principal must remain the same – a divorce from the principal invalidates a spouse’s derivative status and with it the EAD based upon that status. This is so even if these have not yet expired.



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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.