I was recently asked by a client who is here in the United States on a J-1 visa and his wife who has a derivative J-2 visa to help them in obtaining work authorization for her. When we were successful in doing that I decided to write up a summary of the various rules and regulations regarding work authorization for the spouses of those who are here in the United States on some other principal working visa—that is, the spouse who is here on an L-2 visa because their husband or wife is working here as an L-1A executive or managerial transferee or as a specialized knowledge transferee on an L-1B visa or, as above, the spouse who is here on a J-2 visa because their husband or wife is here on a J-1 visa.
I’ll discuss the situations when a derivative spouse can’t obtain work authorization; for example, the spouse who is here on an H-4 visa because their husband or wife is in the U.S. working on a specialized worker H-1B visa or the spouse who is here on an F-2 visa because their spouse is here as an F-1 student.
Before getting to those summaries, let me state the obvious: never, ever work in the U.S. without first obtaining proper work authorization. Doing so violates the law, violates the terms and conditions of your status, subjects you to all sorts of dire penalties such as criminal penalties, civil penalties, being placed in removal proceedings, having your visa revoked, being prevented from returning to the U.S. under certain circumstances and for certain long periods of time, etc. Just don’t do it!
With that proviso being stated, let’s start with the J-2 spouse whose husband or wife is in the United States on a J-1 visa. First, the J-2 spouse has status to seek work authorization but he or she will get it only under certain circumstances. Title 8, Code of Federal Regulations, part 214.2(j)(1)(v) states: “Income from the spouse's or dependent's employment may 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.”
Clearly, the J-2 spouse can obtain work authorization but he or she will do so only after satisfying the USCIS that employment is only being sought and the income will only be used only to support the family’s recreational and cultural activities. If the J-2 spouse needs to work in order to pay for the family’s basic living expenses, then work authorization is not going to be given.
The J-2 spouse applies for the Employment Authorization Document (the “EAD”), by filing Form I-765 with the USCIS Service Center that has jurisdiction over his or her place of residence. For example, if the J-2 visa holder resides in Philadelphia, he or she would apply at the Vermont Service Center. The I-765 should be submitted with all required evidence including evidence of not only the applicant’s J-2 status but also their spouse’s J-1 status, the DS- 2019 forms, copies of the identification page of J-2's passport, including the photo page, a copy (both front and back) of his or her I-94 and the I-94 of the J-1 spouse, 2 passport style photographs, a copy of any prior work-authorization card, a letter stating why the income is necessary and finally, of course, the filing fee. As of the writing of this post, the filing fee for the I-765 is $340.00.
If approved, the J-2 visa holder will be authorized to work in any kind of full or part-time employment for the period stated on the card but only as long as the J-1 spouse is maintaining their own status.
On the next posting, I’ll talk about L-2 spouses of those on L-1 executive or managerial intracompany transferee visas.
