Do you actually need EAD for L-2 or E-2 Spouse ?

[Johnson Zhou]

See

https://www.jdsupra.com/legalnews/let-l-2-and-e-spouses-work-without-an-2890307/#_edn2

which explains that by statue and USCIS regulation. L2/E spounse is authorized to accept employment “incident to status.” and do not require additonal DHS authorization.

Appeal court decision in 2013 that says E-2 doesn't need EAD: 

http://www.irac.net/unpublished/kyung-lee-a089-047-352-bia-nov-5-2013/

in Nunez et al v. Director of the Texas Service Center, U.S. Citizenship and Immigration Services et al, USCIS denied adjustment of status because prior L-2 emplyoment without EAD, but folded immediately after a lawsuit is brought up.

News coverage: https://thinkimmigration.org/blog/2021/03/19/employment-without-authorization-cause-i-dont-need-it/

It also looks like in a April 2007 AILA meeting with SSA and DHS demostrated that USCIS and SSA both agree that L2 is authroized to accept employment "incident to status" and the EAD is really only for I-9 purpose. I don't have the exact text to that since I don't have a AILA membership.

 

SSA has long agreed that L2 does not need EAD and regularly issue SSN for L2 without EAD per

https://secure.ssa.gov/apps10/poms.nsf/lnx/0110211420#g1

Many employer would also accept foreign passport + L2 I94 + Marriage certificat citing this for I-9 purpose. 

 

Now I know it is best to apply for EAD. But with the EAD delays in COVID, it is possible that one has to lose their job for a long time waiting for EAD to arrive. Which can be more expensive than a legal fight against USCIS. I wonder what people think here.

[newacct]

17 hours ago, Johnson Zhou said:

Many employer would also accept foreign passport + L2 I94 + Marriage certificat citing this for I-9 purpose.

If they did this it would be incorrect. Those documents do not satisfy List A, B, or C requirements for the I-9.

[LeaveMessageH1B]

18 hours ago, Johnson Zhou said:

it is possible that one has to lose their job for a long time waiting for EAD to arrive.

not sure what you're trying to say here - If person already has job, why would they lose it ? due to lack of EAD? 

18 hours ago, Johnson Zhou said:

any employer would also accept foreign passport + L2 I94 + Marriage certificat citing this for I-9 purpose. 

If this works then there's a solution right here !

 

You presented a problem, and cited different laws and regulations and gave possible solution....

what is your question here ?? Please elaborate so all can benefit from it.

[newacct]

On 10/1/2021 at 10:01 AM, Leavemessageh1b said:

not sure what you're trying to say here - If person already has job, why would they lose it ? due to lack of EAD?

I think the issue is that if an employee used an EAD for I-9, then the employer is required to re-verify the I-9 when the EAD expires. EAD applications take like 6 months these days, and H4/L2/E2 EADs do not have automatic extensions. So if the renewal is still pending when the EAD expires, the employer has to let the person go.

[LeaveMessageH1B]

On 10/4/2021 at 12:34 PM, newacct said:

I think the issue is that if an employee used an EAD for I-9, then the employer is required to re-verify the I-9 when the EAD expires. EAD applications take like 6 months these days, and H4/L2/E2 EADs do not have automatic extensions. So if the renewal is still pending when the EAD expires, the employer has to let the person go.

Thank you