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

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.”

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.

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.

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).

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.