Legislation recently signed by President Bush changes the ground rules for hiring the spouse of a temporary worker in two important categories. Signed on January 16, 2002, Pub. L. No. 107-124, 115 Stat. 2402, requires the Attorney General to grant work authorization to the spouse of an E-1 (treaty trader) or E-2 (treaty investor). A companion law, Pub. L. No. 107-125, 115 Stat. 2403, does the same for the spouse of an L-1 (intracompany transferee). The E-1 and E-2 classifications include not only individual treaty traders and investors, but also critical employees of qualifying companies in the United Stated that are owned by nationals of the treaty country. The L-1 classification is for personnel working in an executive or managerial job, or one requiring specialized knowledge of the their organization or its products or services, who seek to transfer temporarily from their employer abroad to fill any such position with a related organization in the United States. See generally Gordon, Mailman and Yale-Loehr, Immigration Law and Procedure (2001), chapters 17 and 24.

In negotiating to hire an employee from abroad, a U.S. company often faces this question: "Will my husband (or wife) also be able to work?" In asking this, the prospect may be angling for an offer to the spouse as well. But more often, the question simply speaks to whether the spouse will be allowed to work under our immigration laws. The answer, with few exceptions, has been "No, not unless he or she independently qualifies under one of the nonimmigrant (temporary) work categories." The privilege of accompanying the principal worker ordinarily gives the spouse no corresponding right to work. See 8 C.F.R. § 214.1(e) (prohibiting employment unless permitted by classification or specifically authorized).

An interesting exception, long on the books, is the J-2, the accompanying spouse of a J-1 exchange visitor. See INA § 101(a)(15)(J), 8 U.S.C. § 1101(a)(15)(J). Exchange visitors come in a variety of shapes, including professors and research scholars, teachers, trainees, students, au pairs, and camp counselors, all subject to a restriction on the type or extent of their employment, depending on the nature of the exchange program and their certificate of eligibility. See generally 8 C.F.R. § 214.2(j), 22 C.F.R. pt. 62; Gordon, Mailman & Yale-Loehr, supra, at chapter 22. The dependent J-2 spouse and indeed minor children, however, are relatively free of restriction. They do have to apply on Form I-765 for an employment authorization document, see 8 C.F.R. § 274a.13, which is routinely granted by the Immigration and Naturalization Service (INS). They simply have to show that the income will be "used to support the family's customary recreational and cultural activities and related travel, among other things. Employment will not be authorized if this income is needed to support the J-1 principal alien." 8 C.F.R. § 214.2(j)(1)(v). But money is perfectly fungible, and even a Big Five accounting firm might find it hard to determine whose money went for what in a close family. Although the authorization is limited to the length of the J-1's stay and no longer than four years, within that time the J-2 may take any kind of job. And a particularly attractive feature of employment for both the J-1 and J-2 is that it is free of FICA tax, both for the employer and the J-2. See Gordon, Mailman & Yale-Loehr, supra, at § 22.03[5][a].

Most dependents of foreign government officials (in A-1 or A-2 status), a narrow nonimmigrant group governed by an elaborate regime, also enjoy employment rights. See 8 C.F.R. § 214.2(a). These are the spouses, unmarried children, and, in the main, older unmarried sons and daughters who are students. The rules reflect the impact of bilateral employment agreements and de facto reciprocal arrangements confirmed by the U.S. Department of State. Similar rules apply to the dependents of certain nonimmigrants in the G visa classifications-officers and employees of international organizations like the United Nations and World Bank, and accredited representatives to such organizations and their staff-members. See 8 C.F.R § 214.2(g).

The employment status of the spouses and children of treaty traders (E-1) and treaty investors (E-2), mentioned above, has been ambiguous for a long time. The general rule at least since the 1952 Act is that a nonimmigrant is deportable for failing to maintain her nonimmigrant status or to comply with its conditions. See Immigration and Nationality Act of 1952 (INA), § 241(a)(9), 66 Stat. 163 (1952). The current statutory provision, INA § 237(a)(1)(C), 8 U.S.C. § 1227(a)(1)(C) (2001), is essentially identical.. Under that rule, someone who takes a job at odds with her nonimmigrant classification fails to maintain status and is deportable. See 8 C.F.R. § 214.1(e). See also, e.g., Londono v. INS, 433 F.2d 635 (2d Cir. 1970); Matter of B-, 6 I. & N. Dec. 234 (BIA 1954) (visitor deportable because obtaining social security card with intention to work is inconsistent with status). But our government has not applied this rule to the spouses and children of treaty traders and treaty investors.

Sharing a Department of State view, the INS has long instructed its officers that "the nonimmigrant E spouse and children of a treaty trader or treaty investor . . . shall not be deemed to have violated status if they [take employment]; and so long as the principal E nonimmigrant is maintaining status no action shall be taken to require their departure." INS Operations Instruction (OI) 214.2e. On the other hand, the Service has insisted by regulation that "[e]mployment authorization does not extend to the dependents of the principal trader or treaty investor." 8 C.F.R. § 274a.12(b)(5). This has put employers at risk of civil fine for hiring E dependents who do not have an independent basis for work authorization. See INA § 274A(e)(4), (5), 8 U.S.C. § 1324a(e)(4), (5). For the E dependent, it has meant the likely denial of an application for adjustment of status to permanent residence, or for change to another nonimmigrant status. See INA §§ 245(c) (barring applicants who have taken unauthorized employment or otherwise failed to maintain a lawful status), 248 (limiting eligibility to applicants who have maintained their nonimmigrant status). The INS signaled its intention to deny such applications by proposing a regulation. See 56 Fed. Reg. 4292, 4297 (1991) (to be codified at 8 C.F.R. § 214.2(e)(3)) (proposed Aug. 30, 1991). The agency has never finalized that proposal, however.

The reluctance of the administrative agencies to treat E dependents like other nonimmigrant spouses and children may well lie in the derivation of the E-1 and E-2 classifications from the Chinese Exclusion Laws. These laws and their underlying treaties exempted from their bar certain limited classes, including treaty merchants. And the Supreme Court in United States v. Gue Lim, 176 U.S. 459 (1900), inferred from these provisions the right of the treaty merchant's wife to accompany him on the same terms. For critical analysis of the INS's failure to resolve its ambivalence in favor of the dependents, see Gordon, Mailman & Yale-Loehr, supra, at §§ 17.07 nn.12 - 19, 51.04[4][b] nn.52 - 54, and accompanying text.

Congress's recent clarification, at least to the extent of mandating explicit work authorization to E-1 and E-2 spouses, is therefore welcome. Even without the same historical background, extension of employment rights to the spouses of L-1 transferees makes equally good sense from the perspective of international business. Managerial transferees (L-1A) are admissible for a total of seven years; transferees with specialized knowledge (L-1B) for a total of five years. It is hard in our culture of two-job families to bring a critical employee for such a long time without enabling his or her spouse to work as well. As Representative James Sensenbrenner, chairman of the House Judiciary Committee, noted when the bill was on the House floor, "multinational companies are finding it increasingly difficult to persuade their employees abroad to relocate to the United States if it means their spouses will have to forgo employment." 147 Cong. Rec. H5358 (daily ed. Sept. 5, 2001). In fact, personnel in E or L status, who generally find it easy to acquire the green card (even though they may not intend to remain permanently), now often apply just so their spouse can work or their child can remain to follow a career in the United States.

Will the enactment of these provisions exert pressure on Congress to accommodate the spouses of workers in H-1B status, the classification for professional personnel that has attracted so much attention? Perhaps, but in 1990 Congress had already indicated its concern with the number of H-1B workers by imposing a numerical cap. It raised that cap twice as the demand for more professional personnel soared during the business boom, but only with some resistance. Now, an amendment to allow the spouses of H-1Bs to work would undoubtedly prove controversial.

On the other hand, Congress should face no opposition to giving employment rights to the families of "I" nonimmigrants, that is, international press and media representatives. They are a relatively small group, and like diplomats, intracompany transferees, and treaty traders and investors, they often stay in the United States for many years.
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* This article originally appeared in the February 25, 2002 issue of the New York Law Journal. Copyright © 2002 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at True, Walsh & Miller (http://www.twmlaw.com/) in Ithaca, New York, and teaches immigration law at Cornell Law School. He can be reached at syl@twmlaw.com.