There are two basic sources for federal law in general and immigration law in particular. First, Congress passes a basic statute and then amends it to address changing conditions. In the immigration context we have the Immigration and Nationality Act of 1952, as amended, which is the law the Immigration Service must enforce. To do its duties, the Immigration Service then promulgates regulations which are the rules governing its conduct as well as informing the public regarding the proper procedures and rules. No one has ever considered giving the Immigration Service an award for its regulatory scheme and it is one of the most notorious agencies in terms of not issuing new regulations when needed. A recent Board of Immigration Appeals (BIA) decision highlights these problems.
In this recent decision, the BIA was faced with an adjustment of status application filed by an E-2 “treaty investor”. The E-2 visa holder owned a small business in California and subsequently he and his family became eligible for permanent residence. One of the requirements for adjustment of status in this context is that each family member must prove that they have always maintained proper immigration status and have not worked without authorization.
In 2002, Congress amended the Immigration Act to provide work authorization to an E-2 investor’s spouse. In this case the spouse had in fact engaged in employment as authorized by the Immigration Act. However, she did not, other than for a brief period, obtain a work authorization document from the Immigration Service.
The Immigration Service subsequently denied her application for adjustment of status concluding that since she did not have a work authorization document that she had engaged in employment without authorization and therefore was ineligible to adjust status. The BIA correctly pointed out that the Immigration Act itself provides work authorization to the spouse of an E-2 investor and then looked at the Immigration Service’s regulations regarding who must have an employment authorization document.
The Service’s regulations at 8 CFR §274.a(12)(c) contain a list of those individuals who are “required” to have an employment authorization document issued by the Immigration Service. Interestingly, these regulations have not been amended since 2002 and therefore do not contain any reference to an E-2 spouse even though Congress authorized that employment 12 years ago. Therefore, the BIA concluded that since Congress authorized the E-2 spouse to work in the U.S. and the Immigration Service’s regulations do not list the E-2 spouse as the person who must have a work authorization document, the E-2 spouse’s employment was not unauthorized and therefore she was eligible to adjust status.
One of the other interesting aspects of the recent BIA decision, although it has nothing to do with the facts of the case, is the Board’s reference to the work authorization document requirement for an E-1visa holder as well as work authorization for the spouse and a “dependent son or daughter”. Under the Immigration Act, a “son or daughter” means a child who is either married or over the age of 21. A child of an E-1 or E-2 visa holder who is either married or over the age of 21 is no longer a dependent for immigration purposes. Therefore, we would never have a situation where the “son or daughter” of an E visa holder could apply for work authorization. Although this may seem to be merely a technicality, it also can be argued that even though the regulation is poorly drafted, it does appear to confer legal status and work authorization on dependents who should not be eligible for it because they have married or turned 21.
We are always hopeful that one day the Immigration Service will amend its regulations to bring them in line with the current Immigration and Nationality Act, as well as make the language of existing rules consistent with the definitions contained in the Act. Until then, the BIA and the federal courts will have to continue to correct these mistakes on a case by case basis.