We previously reported that USCIS reached a settlement agreement that allows the spouses of foreign nationals holding E-1, E-2, E-3, and L-1 status to work “incident to status.” This means that these spouses can work for any U.S. employer by virtue of their status and do not need to apply separately for an Employment Authorization Document or EAD card.

On March 18, 2022, USCIS issued a Policy Alert with guidance on how E-1, E-2, E-3, and L-2 spouses can document their employment authorization. Specifically, the Policy Alert notes that on January 30, 2022, USCIS and U.S. Customs and Border Protection began issuing I-94 forms with new class of admission codes E-1S, E-2S, E-3S, and L-2S. (Previously the “S” was not included, meaning that dependent spouses could not be distinguished from dependent children.) The new guidance indicates that a dependent E or L I-94 containing the “S” serves as a List C document establishing employment authorization for I-9 purposes.

Individuals in dependent E or L status who have not traveled internationally since January 30, 2022 and/or who have not changed their status or extended their stay since that date will not have an “S” included in their class of admission and cannot use their existing I-94 as evidence of employment authorization. CBP has indicated that they will not issue corrected I-94s to people who last entered the U.S. prior to January 30, 2022. However, the new Policy Alert indicates that USCIS will be sending notices to these individuals that, together with their I-94, will serve as a List C document for the I-9 Form.

This guidance is counter-intuitive. Normally a passport and I-94 together constitute a List A document for I-9 purposes, establishing both identity and employment authorization. But because the new guidance states that an I-94 with the “S” in the annotation or accompanied by a USCIS notice will serve as a List C document, these must now be coupled with a List B document to establish identity. List B documents include the following:

• Driver's license or identification card issued by a state or outlying territory of the U.S., provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address.
• ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address
• School ID card with a photograph
• Voter registration card
• S. military card or draft record
• Military dependent’s ID card
• S. Coast Guard Merchant Mariner Document (MMD) card
• Native American tribal document
• Driver’s license issued by a Canadian government authority