Immigration
Employment Authorization for Spouses of E and L Non immigrants.
Further to policy changes first announced in November 2021, U.S. Customs and Border Protection (CBP) has implemented new Form I-94 admission codes that allow E and L dependent spouses entering the U.S. after Jan. 31, 2022 to work without a separate employment authorization document (EAD). The new codes are: E-1S – Spouse of E-1; E-2S – Spouse of E-2; E-3S – Spouse of E-3; and, L-2S – Spouse of L-1A or L-1B.
A Form I-94 issued to an E or L dependent spouse admitted to the U.S. after Jan. 31, 2022 is now alone sufficient to establish I-9 employment eligibility. However, at this time, a Form I-94 issued to an E or L dependent spouse admitted before Jan. 31, 2022 is not sufficient by itself to establish I-9 employment eligibility. A valid Form I-94 must be combined with a valid EAD or with evidence of a timely filed EAD extension in order to establish I-9 employment eligibility. See the limited automatic extensions policy below for further details.
New Form I-94 admission codes are assigned only when a foreign national enters the U.S. If E or L dependent spouses currently in the U.S. were admitted before Jan. 31, 2022, they would have to depart and re-enter the U.S. based on a valid E-1, E-2, E-3, or L-2 derivative visa in order to obtain a new Form I-94 admission code permitting them to work in the U.S. Otherwise, they will need a valid EAD as detailed above. They cannot obtain a new admission code through CBP.
Although not required, CBP recommends L2 and E spouses travel with proof of the marriage relationship (i.e., marriage certificate with English translation, if necessary) to assure the correct notation is entered into their I-94 admission record.
U.S. Citizenship and Immigration Services (USCIS) has updated its I-9 policy guidance to confirm that employers can accept the new, revised I-94 containing these new work authorization notations as evidence of employment authorization under List C of the Form I-9.
Only E and L dependent spouses are newly eligible for employment incident to status. The new codes distinguish between dependent spouses and dependent children in each category because only E and L dependent spouses are eligible for employment authorization. Dependent children in each category will also receive a new Form I-94 admission code upon entering the U.S., but dependent children will remain ineligible for employment and their status will otherwise remain unchanged.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]