As an immigration lawyer, I often hear heartbreaking stories of abuse. Abuse of immigrants, visitors, undocumented aliens and many more. Sometimes there is a solution, but more often than not, there are no solutions. Those who have never had a solution are spouses of non-immigrant visa holders.
The Obama Administration has issued guidance and policy for allowing work authorization for certain non-immigrant visa holder spouses. A new form has been created and currently in a 30 day comment period via the Federal Register. The new Form I-765v is significantly different from the traditional I-765 but with good reason.
Here are the spouses that can apply for work authorization:
- The applicant is the qualifying spouse who accompanied or followed to join a principal nonimmigrant admitted under INA section 101(a)(15)(A), (E)(iii), (G), or (H); .he applicant must demonstrate that he or she:
- Is married to a qualifying principal nonimmigrant spouse; or
- Was married to a qualifying principal nonimmigrant spouse and a. The spouse died within two years of filing the EAD application;
- The spouse lost qualifying nonimmigrant status due to an incident of domestic violence; or
- The marriage to the principal spouse was terminated within the two years prior to filing for the INA section106 employment authorization, and there is a connection between the termination of the marriage and the battery or extreme cruelty. (See AFM 21.14(q)(2) for additional guidance);
- Was last admitted as a nonimmigrant under INA section 101(a)(15)(A), (E)(iii), (G), or (H);
- Was battered or has been subjected to extreme cruelty perpetrated by the principal nonimmigrant spouse during the marriage and after admission as a nonimmigrant under INA section 101(a)(15)(A), (E)(iii), (G), or (H); and
- Currently resides in the United States.
To be clear, these are the visa holders that will qualify:
- A-1, A-2, and A-3 (foreign diplomats and government officials).
- E-3 (Australian specialty occupation workers).
- G-1, G-2, G-3. G-4 and G-5 (employees of foreign government and international organizations).
- H-1B, H-1B1, H-2A, H-2B, H-3 and H-4 (specialty occupation workers, Free Trade Agreement professionals from Chile and Singapore, Agricultural workers and trainees).
What to include as evidence to support your application:
- Evidence of applicant’s admission in qualifying nonimmigrant status;
- Evidence of principal spouse’s admission in qualifying nonimmigrant status;
- Evidence of qualifying spousal relationship with the principal nonimmigrant; 4. Evidence of applicant’s current residence in the United States; and
- Evidence of abuse, such as police reports, court records, medical records, reports from social service agencies, or affidavits. If there is a protective court order in place, a copy should be submitted.
* If approved, the work authorization will be issued for two years.
The work authorization can be renewed. This is what you must do:
- Completed and signed Form I-765V;
- The required passport-style color photographs;
- Evidence of applicant’s current residence in the United States;
- Evidence the principal nonimmigrant maintains valid immigration status under INA section 101(a)(15)(A), (E)(iii), (G), or (H) on the date of filing the EAD renewal application (Note: An application for EAD renewal may also be filed within two years of the date of the principal nonimmigrant’s death, within two years of the principal nonimmigrant’s loss of status as a result of an incident of domestic violence, or within two years of the termination of the marriage if there is a connection between the termination of the marriage and the battery or extreme cruelty .); and
- Evidence of previous EAD issued under these rules.
In my opinion, these rules are very generous and will go a long way to help a vulnerable group of people who often have no option. I have to emphasize- no option. The policy keeps the evidence requirement broad which is incredibly helpful. Think about the woman who has three children, been abused by her husband, now has to either risk her life by staying in the relationship or face homelessness and no-immigration status if she leaves the marriage. Go back to her home country, I hear you say? That often is not an option either for a plethora of reasons. Often the choice to leave or stay in the marriage is not even given to her. Those abused women will now have the option to stand up on her own two feet. And while more often than not the spouse is a woman, I have helped many a men successfully apply for VAWA (the law on which these rules are based) and I expect there will be men who will benefit from these rules too.
I must take the opportunity to thank the Administration for taking this enormous step. For anyone who wants to learn more, here is a link to the 2016-0308_pm-602-0130_eligibility_for_employment_authorization_for_battered_spouses_of_certain_nonimmigrants and here is a link the Federal Register. The comment period ends around December 11th. My guess is that the rule will be final sometime in Spring 2017, if not before.
For any questions that you may have, you are welcome to contact us at firstname.lastname@example.org.
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