U.S. Citizenship and Immigration Services (USCIS) has issued an update on changes it is making to assist spouses of E and L visa holders who are in the U.S. but do not have a Form I94 employment authorization admission document.
DHS, which announced the directive in November 2021, is considering recognizing E and L spouses for authorized employment because of the regulations that apply to them. In this article, this issue will be discussed in an understandable and detailed manner to facilitate understanding for all.
The Implementation of a New Code
U.S. Citizenship and Immigration Services (USCIS) has adopted a new policy to recognize the right of spouses of E and L holders to authorized employment under their status. This means that they do not need to request a separate employment authorization document (“EAD”).
In a long-awaited development, DHS revealed that, effective January 31, 2022, E and L dependent spouses will have a special code on their I-94s: E-1 Spouse (E-1S), E-2 Spouse (E-2S), E-3 Spouse (E-3S) and L-1A or B Spouse (L-2S). This new code represents the automatic work authorization associated with dependent spouse statuses E and L.
The new code has been in effect since January 31, 2022 and applies only to newcomers. DHS will not reissue an I-94 for someone who already holds a valid I-94 in the United States.
This also means that if a spouse already in the U.S. wishes to take advantage of the new designation, he or she will have to leave the U.S. and return.
However, the Department of Homeland Security recently noted that USCIS recognizes E and L spouses as eligible to work based on their status, regardless of the score on the I-94, and any valid I-94 is considered valid work authorization.
Although DHS has stated that this policy change has been added to its I-9 and E-Verify websites, to date, the change has not been confirmed. The policy changes are now reflected in the USCIS policy manual.
What Employers Need to Know?
Employers should take care to designate this I-94 as a C-List, specifically as a Department of Homeland Security (DHS)-issued employment authorization document, affectionately known as a C-List (7) because it is listed on Form I-9 Document No. .7 in the C-List. C7 is the collective name for documents issued by DHS.
USCIS does not designate an I-94 annotated with a foreign passport as List A. This means that E and L spouses will still need to submit Listing B documents with their I-94 (Listing C) when completing the I-9 form.
The Listing B file determines identity. The fact that the foreign passport/full I-94 A listing is not listed as an acceptable document in the USCIS guidelines is a point of contention.
In fact, we have approached USCIS to reconsider this, as some E and L spouses may have difficulty obtaining certain B identification documents quickly. We will get back to you if there is any news.
The special case of L visa holders
Eligible spouses (executives, managers and other professionals) will begin receiving special notices as proof of work authorization when they transfer from abroad to their respective companies in the United States.
USCIS began on April 1, 2022, to send spousal designation notices to L-2 visa holders, dependent spouses of L-1 intra-company transfers with a valid Form I-94 issued before January 30, 2022. The I-94 is a travel record provided to foreign visitors to record their arrival in the United States and how long they are allowed to stay in the country.
As part of a settlement with spouse-dependent visa holders, USCIS announced that L-2 spouses will be allowed to work as a matter of status after entering the United States.
Under the agreement, USCIS further agreed to create a new I-94 name for the L spouse as proof of work authorization.
USCIS advises that eligible L-spouses who were unable to receive notification by mail by April 30, 2022, may request the notices by sending an email to USCIS via the following email address: [at EL-married-U21@uscis.dhs.gov ].
Richard Herman, immigration attorney and founder of the Herman Law Group gives a detailed explanation of the I-94 record. He believes that I-94 records issued on or after January 31 include a new L-2S endorsement to be used as proof of employment authorization in the I-9 employment verification.
L-2 visa holders may submit the new endorsement and their current I-94 to apply for work authorization. The L-2 receives a new I-94 record indicating that the entry level is “S” and can simply use their I-94 as their C-list employment authorization document. The L spouse presenting the I-94 will also need to provide acceptable identification to complete the I-9 process.
If you need help with a particular process, please feel free to contact or schedule a consultation with one of the experienced immigration attorneys at Herman Legal Group by calling 1-800-808-4013 or 1-216-696-6170, or by booking online. Consultations can be conducted via zoom, skype, whatsapp, facetime, or in office.