On November 19, 2021, the Quarles & Brady team issued an alert detailing U.S. Citizenship and Immigration Service’s (USCIS) policy changes regarding work authorization for L-2, H-4, and E dependent visa spouses. Notably, USCIS updated its Policy Manual to indicate that “USCIS considers E-1, E-2, E-3 and L-2 dependent spouses employment authorized incident to status.” 10 USCIS PM B.2. That change in policy, however, did not result in dependent visa spouses immediately being able to work. The policy change still left these dependent spouses without documentation to establish their right to work on Form I-9, Employment Eligibility Verification.

The USCIS Policy Manual noted that Form I-94s without any designation that L-2 and E dependent visa holders were spouses could not be used as a valid List C (Employment Authorization) document when completing a Form I-9. USCIS noted that it was working with U.S. Customs and Border Patrol (CBP) to implement new codes on Form I-94s for such a designation.

This week, our team received reports from across the country that CBP began issuing Form I-94s bearing “L-2S” designations for the spouses of L-1 visa holders and similar designations for the spouses of E visa holders. Several CBP officials confirmed that they began issuing I-94s with these designations as of January 31, 2022. Additionally, other CBP officials indicated that they would update Form I-94s to list this designation where the L-2 or E dependent spouse entered the U.S. on or after January 31, 2022.

In light of the ongoing implementation of these changes, our team anticipates that some L-2 and E dependent spouses may decide to travel outside of the U.S. and then reenter to obtain a new entry record that provides the necessary designation for work authorization. However, we highlight that some CBP sites indicated they are not yet issuing I-94s with these designations. Thus, L-2 and E dependent spouses who travel should check their I-94 designations upon reentry and contact a deferred inspection site immediately to address any issues.

Our team expects that CBP and USCIS will begin uniformly issuing spousal designations on Form I-94s in the near future. We also anticipate that USCIS will update the I-9 Employer Handbook (Form M-274) on or before March 12, 2022, so L-2 and E dependent spouses with a valid I-94 bearing this designation may present their Form I-94 for work authorization purposes.

These policy changes have been much anticipated by practitioners and the community for almost 20 years since Congress passed Public Law 107-125 in 2002, authorizing L-2 spouses to work incident to status. Some practitioners raised the issue as early as 2005 in meetings with the Social Security Administration and USCIS. They argued that L-2 and E spouses should not require EADs because the statute authorized them to work incident to their status. Thus, our team welcomes these long-awaited policy changes and looks forward to guiding our clients on this issue.