On March 18, 2022, U.S. Citizenship Services (USCIS) published further detail relating to employment authorization documentation for E and L spouses. By way of background, in November 2021, USCIS reached a settlement agreement per the case of Shergill et al. v. Mayorkas in which it agreed that the spouses of E and L visa holders would be entitled automatically to be employment authorized pursuant to their status. Discussion regarding automatic employment authorization had commenced in 2002, but USCIS failed to make any headway in this regard until a federal court order in 2021. In part, the court noted that USCIS was delaying the processing of such requests, and the wait times of eight to twelve months for initial employment authorization documents and renewals was disrupting both the ability of the foreign national spouse to work as well as the U.S. employer to count on the foreign worker’s continued and uninterrupted employment.
On January 30, 2022, U.S. Customs and Border Protection and USCIS commenced issuing I-94 arrival documents with a new class of admission code – E-1S, E-2S, and L-2S for certain E and L spouses. These spouses are now permitted to utilize their unexpired forms I-94 with one of these new codes as a “List C” document for Form I-9 documentation, per the USCIS Policy Manual.
USCIS further announced that on April 1, it would begin mailing notification regarding employment authorization to E and L spouses aged 21 and above who have an unexpired Form I-94 that USCIS issued prior to January 30, 2022. This notice, in conjunction with Form I-94, may be utilized as evidence of employment authorization for I-9 purposes. USCIS announced this will apply to the spouses of E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrants.
Spouses of E and L spouses under the age of 21, or those who have not received notification by April 30, 2022, should email USCIS at: mailto:E-L-married-U21@uscis.dhs.gov to request this specific notice.
These spouses may only apply for requests for I-94 endorsement with the “S” designation if their I-539 extensions of stay request approvals were dated prior to January 30, 2022.
It is also important to keep in mind that L-2 and E-1 or E-2 spouses may also, after entry to the United States after January 30, 2022, download their I-94 forms here to assure that the “S” notation is added to the entry document, which will, according to the USCIS Policy Manual here, be used for purposes of I-9 compliance and automatic employment authorization.
USCIS initially took some time to implement the terms of the federal court settlement agreement of November 12, 2021, but as of April 1, 2022, it appears that the spouses of nonimmigrants – specifically the spouses of Treaty Traders and Investors (E-1, E-2, E-3, and E-3D visa designates) and Intracompany transfers (L-2 spouses) – will finally be able to work in the United States. This will surely be an additional source of attraction for these high-level workers to our country.
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