In November 2021, United States Citizenship and Immigration Services (USCIS) announced a surprised settlement to a lawsuit that was brought against it on the matter of work rights for spouses of work visa holders in the United States.
USCIS agreed in the settlement to fundamentally change the process for giving work rights to spouses of foreign nationals working in the United States on temporary work visas such as the E-3, H-1B, E-2, and more.
Previously, foreign workers’ spouses had to arrive in the US and submit an application form via post to USCIS, with a fee, and were not able to begin working in the US until the form was approved and a physical card, known as an Employment Authorization Document (EAD) was issued to them. This process always took at least three months, but throughout the Covid pandemic, EAD backlogs became extremely long — many were waiting more than six months for the EAD to arrive.
This process created a lot of angst for spouses of foreign nationals working in the US, including spouses of Australians working on E-3 visas. These spouses had E-3D visas that allowed them to stay in the US, but they could not begin working for any employer until the EAD arrived in the mail. For only a two year visa, spouses of Australian E-3 visa holders were spending more than a quarter of their authorised stay in the US simply waiting for the right to work in the US. Further, the cards would only be valid for 1 to 2 years, and would require renewals. Sometimes the renewals did not arrive before previous EAD cards expired, resulting in spouses having to suddenly terminate their employment in the US.
New System
Following the implementation of the lawsuit settlement, USCIS now allows spouses of work visa holders, including E-3 visa holders, to work in the US immediately upon admission to the US. This is a significant improvement to the old system. This means that an E-3D (E-3 Dependent) visa holder who is a spouse of an E-3 holder can work immediately after entering the US with the E-3D visa. There are no application forms to submit, and no waiting for processing before rights are conferred.
Now, when an E-3D Spouse travels to the United States, they will be admitted into the US with a different code on their I-94 Record. That code (“E3S”) will indicate they are an E-3 spouse and is evidence of employment authorisation that any employer in the US can verify to ensure their employee is compliant and eligible to be lawfully employed in the US.
A significant challenge eliminated when seconding Australian families to the United States
Prior to these changes, many Australian couples / families working in the US encountered challenges associated with the old EAD regime. For spouses of E-3 workers, it was in many cases untenable to simply not be employed at all in the US whilst waiting several months for an EAD to arrive. Many employers had to cover the lost income for their seconded employees’ spouses, and even still many spouses were concerned about long gaps in their CVs accruing without employment. Further, expiring EADs created situations where spouses had to suddenly end their employment even after they had it.
Now, under the new system in 2022, spouses actually enjoy more work rights than the principal E-3 holder and can begin working in the US immediately after entering the country with their E-3D visa. This has removed a significant hesitation as spouses now know they will not be left unable to work in the US for several months or longer once in the US.
Some issues with implementation remain
The new I-94 codes began 1 February 2022, however many spouse visa holders have reported that CBP agents at the port-of-entry were unfamiliar with the new system and admitted them under the prior system. In most cases these can be quickly fixed with a call to CBP’s Deferred Inspection offices.
Further, the Social Security Administration has yet to implement processes to recognise the new system and issue Social Security Numbers to spouses of work visa holders without EAD cards. Social security numbers are not actually a requirement to be lawfully employed in the US, but many employers, particularly those unfamiliar with hiring noncitizens, have a mistaken belief that SSN cards are required to prove employment authorisation. We expect it will take some time for SSA to implement the new system across their offices.
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