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United States: USCIS Issues Further Guidance on Employment Authorization for E and L Spouses

March 18, 2022

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  • United StatesUnited States

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At a glance

  • Starting on or about April 1, 2022, U.S. Citizenship and Immigration Services (USCIS) will issue spousal designation notices to E and L dependent spouses who possess valid Forms I-94 that were issued by USCIS before January 30, 2022 and therefore do not contain the new I-94 spousal annotation.
  • These new notices, along with the spouse’s current, valid Form I-94, will be sufficient evidence of employment authorization under List C for Form I-9 employment verification.
  • The agency will not issue these notices to E and L spouses whose current Forms I-94 were issued by U.S. Customs and Border Protection (CBP) after travel to the United States.
  • USCIS continues to implement an automatic extension of EAD validity to E, H-4, and L-2 spouses who have filed a timely application to extend an EAD and have an unexpired I-94 for E, H-4 or L status. 

A closer look

In the wake of the November 2021 U.S. Citizenship and Immigration Services (USCIS) policy change to consider E and L spouses to be employment authorized based on their valid E or L nonimmigrant status, the agency has begun implementation of the policy and issued new guidance on the next steps in the process. Starting on or about April 1, E and L spouses who are in possession of a valid I-94 issued by USCIS before January 30, and therefore lacking the new “S” spousal annotation, should receive a spousal designation notice from USCIS. This new notice can be presented in conjunction with their current non-spousal I-94 as evidence of work authorization for I-9 purposes. E and L spouses who have already received Forms I-94 indicating an “S” class of admission – generally, those issued after January 30 – may present their spousal I-94 as a List C employment authorization document in the I-9 employment verification process.

Background

Since January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) have been issuing Forms I-94 with “S” designations for E and L spouses, and “Y” designations for E and L children, in connection with its November 2021 policy change recognizing E and L spouses as work authorized based on their status. The new class of admission (COA) codes for E and L spouses are E-1S, E-2S, E-3S, and L-2S for spouses. E and L nonimmigrant children derivatives receive a “Y” designation instead of “S.”

New guidance for E and L spouses with valid I-94s issued by USCIS before January 30, 2022

Beginning on or about April 1, 2022, E or L spouses age 21 and over who are in possession of an unexpired Form I-94 that was issued by USCIS before January 30, 2022 – and therefore, does not contain an “S” spousal designation – will receive a notice from USCIS indicating their spousal status. This notice, along with their unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, or L-2 nonimmigrant status, will serve as evidence of employment authorization for I-9 purposes.

E or L spouses who are under 21, or who have not received a spousal designation notice from USCIS by April 30, 2022, should email [email protected] to request a notice from USCIS.

USCIS will only send notices to individuals identified as qualifying spouses based on a Form I-539 approved by USCIS. Individuals who received their non-spousal Form I-94 from U.S. Customs and Border Protection (CBP) will not receive these notices, and may wish to contact their Fragomen team to discuss options for obtaining an I-94 indicating “S” spousal status. All E and L spouses have the option to travel and reenter with appropriate documentation of spousal status in order to obtain a spousal Form I-94.

I-9 employment verification guidance

USCIS has confirmed that an unexpired Form I-94 reflecting an E or L “S” designation is acceptable as evidence of employment authorization for spouses under List C of Form I-9. Therefore, E and L spouses who are issued an I-94 with the “S” annotation are authorized to work incident to their status and without the need for an EAD. 

A List C document for Form I-9 purposes means a document that can be used to demonstrate employment eligibility; an E or L spouse presenting such an I-94 will also need to provide an acceptable identity document in order to complete the I-9 process. An E or L spouse who requests and obtains a USCIS EAD will continue to be able to present it as a List A document, demonstrating both identity and employment eligibility.

Automatic extension of E, H-4, and L spousal EADs

As a reminder, since November 2021, USCIS has been implementing an automatic extension of employment authorization document (EAD) policy for certain E, H-4, and L-2 spouses. The auto-extension policy applies to E, H-4 and L-2 spouses who have filed a timely application to extend an EAD and have an unexpired Form I-94 entry record for E, H-4 or L nonimmigrant status. This policy may be especially useful for E and L spouses who have not yet received a Form I-94 with the “S” spousal designation.

Eligible E, H-4 and L-2 spouses will receive an automatic extension through the earlier of: (1) the expiration date of their valid E/H/L Form I-94; (2) the approval or denial of their EAD renewal application; or (3) 180 days from the expiration of their previous EAD.

For Form I-9 employment eligibility verification purposes, the following combination of documents is acceptable in connection with an auto-extension:

  • Form I-94 indicating unexpired H-4, E or L status;
  • Form I-797C for a timely-filed EAD renewal application with a requested EAD category of (a)(17), (a)(18) or (c)(26); and
  • A facially expired EAD in the same category, i.e., (a)(17), (a)(18) or (c)(26).

What’s next

E and L spouses who possess valid Forms I-94 issued by USCIS before January 30, 2022 should be on the lookout for new spousal designation notices from USCIS. If they do not receive the notice by April 30, they should follow the directions above to contact the agency and request the new notice. E and L spouses who have been issued Forms I-94 by CBP before January 30 and therefore do not possess the spousal annotation may wish to discuss strategies for obtaining a new I-94 with their Fragomen team.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.

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  • United StatesUnited States

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