Form I-9 Update – L And E Nonimmigrant Spouses Eligible For Work Without Employment Authorization Document – Really? - Work Visas - United States (2024)

During this challenging time for employers in search of workers,U.S. Customs and Border Protection (CBP) and U.S. Citizenship andImmigration Services (USCIS) have managed to cooperate tocoordinate a response to the litigation settlement (Settlement) reached inShergill, et. al. v. Mayorkasannounced on November 12, 2021. The Settlement will finallyrecognize that spouses of L-1 intracompany transferees (L-2) andE-1/E-2/E-3 nonimmigrant visa holders are authorized to work"incident to their status" as spouses of these principalnonimmigrants. This article is limited in scope to the E and Ldependent spouses affected.

More recently, on January 31, 2022, CBP's SystemsEnforcement Analysis and Review (SEAR) office confirmed that CBPwas applying the following new admission codes to identify spousesof E and L principals for documentation of work authorization.

What are the new approved Category of Admission (COA) codesrelated to the Settlement being used by CBP?

E-1S - Spouse of E-1

E-1Y - Child of E-1

E-2S - Spouse of E-2

E-2Y - Child of E-2

E-3S - Spouse of E-3

E-3Y - Child of E-3

L-2S - Spouse of L-1A or B

L-2Y - Child of L-1A or B

Please note that USCIS is also using these codes whenapproving a change or extension concerning L or E dependent status,which is stated on the I-94 placed at the bottom of theI-797 approval notice. Thesecodes will only be applied to new arrivals to theU.S. by CBP.

If I am an E or L nonimmigrant spouse in the U.S. without thisannotated I-94 with the new code, how do I get an I-94 with thecode?

SEAR officials confirmed that for those requiring an I-94 withthe new code, they would have to depart the U.S. and reenter torequest the new I-94. Those using the option of automatic revalidation to reenter the U.S.after a trip of 30 days or less to Mexico or Canada will receive anI-94 electronic admission record with the code via CBP's onlineI-94website. If, for some reason, at the land border, a paper I-94admission record is issued, the same codes will be used.CBP recommended that E and L nonimmigrant spouses carryproof of marriage to the principal E or L nonimmigrant at time ofapplicant for entry to the U.S.

Are these annotations necessary for Form I-9 completion as towork authorization?

Good question. USCIS posted changes to Volume 10, Chapter 2 of its policy manual (PM)related to the Settlement. The PM notes that, " As of November12, 2021, USCIS considers E-1, E-2, E-3 and L-2 dependent spousesemployment authorized incident to status."

This PM change also specifies that a Form I-94 solely notatedwith the following types of nonimmigrant statuses: "E-1,""E-2," "E-2C," "E-3,""E-3D," "E-3R," or "L-2,"ISNOT SUFFICIENT to serve as evidence of employmentauthorization.

The M-274 Handbook for Employers for Form I-9completion was updated on November 16, 2021, regarding theSettlement, but this update was done before the creation of the COAcodes noted and focused on the automatic extension of workauthorization part of the Settlement described below. We obviouslyneed these COA codes addressed by USCIS as to the FormI-9 and E-Verify sections of the USCIS website.

How do employers typically complete a Form I-9 for E and Lnonimmigrants?

When an L-1, E-1, E-2, or E-3 nonimmigrant selects documentsfrom List A, or B and C to present for Form I-9 completion, theywill normally present their I-94 admission record and passport toconstitute a List A acceptable combination. For dependentspouses, their work authorization eligibility willnot be limited to a specific employer as required fortheir associated nonimmigrant principals holding E or L status. Weshould expect that E and L spouses will also typically present thiscombination (Passport and I-94 with new code). Note that thisscenario shifts from the employer's perspective from typicallyseeing an Employment Authorization Document (EAD) (card) for workauthorization. So, this change eliminates the long delays toprocess an EAD by USCIS for these E and L nonimmigrant spouses. Ofcourse, their I-94 will be limited to the validity of theirprincipal E and L nonimmigrant spouse. In addition, the need toaddress the automatic extension of EAD validity noted in theSettlement will be rare in the future, except perhaps for thoseunable to obtain a new I-94 with the appropriate codeannotation.

As background, what were the major developments referenced inthe Settlement?

1. USCIS agreed to issue policy guidance stating that L-2 spousesare authorized to work based on their status as L-2 nonimmigrantswithout the need to apply for an employmentauthorization document (EAD). This development was really HUGE.Why? Well, USCIS is severely backlogged as to the adjudication ofI-765 work authorization applications for EADs. Right now,applicants can wait for 8 to 13.5 months or longer for approval.The trick here is that employers must be advised regarding whatdocuments are acceptable to prove L-2 status. So, USCIS and CBPwere working to achieve within 120 days of November 10, 2021 (the"Effective Date" of the Settlement), an annotation on theI-94 admissionrecord to be presented for List A/C work authorization purposes forForm I-9The deadline created for this development was March 10, 2022. Asnoted above, CBP released its COA changes on January 31, 2022,ahead of the deadline.
2. In addition, USCIS agreed to provide that automatic extensionsof work authorization will apply to L-2 nonimmigrants under 8 CFR§274a.13(d), who file their I-765 applications before theirEAD expires to allow for continuation of work authorization for upto 180 days. The problem here is that the automatic extension iscut short by the expiration of the I-94 admission period. Forexample, an employer must reverify the employee's workauthorization at the earlier end date on I-94, thedate the I-765 application is approved or denied, or the end of the180 day EAD auto-extension period. This situation leaves theemployer with a very difficult predicament to address, jugglingthese three factors. On November 30, 2021, USCIS posted a clarification of this change for Form I-9completion. In this posting, USCIS noted that bothE and L-2 spouses are now considered employment authorized incidentto status, but that the documentation issued by USCIS for thecategories remains the same.

After the Settlement was announced by USCIS on November 12,2021, USCIS issued a related Policy Alert to clarify thatboth E or L dependent spouses will qualify for theautomatic extension of work authorization (as limited in time asnoted above) by a timely filing of an extension application (I-765)before the EAD expires. In this Policy Alert, USCIS stated that thenecessary combination of documents required to support theapplication of the automatic extension is:

• Form I-94 indicating the unexpired nonimmigrant status (H-4 orE or L dependent spouse);
• Form I-797C receipt notice for a timely filed EAD renewalapplication (Form I-765) stating "Class Requested" as(a)(17), (a)(18), or (c)(26), as applicable; and
• Facially expired EAD issued in the same category (A17, A18, orC26).

In addition, the Policy Alert confirmed that E and L dependentspouses are employment authorized incident to their status; and,"therefore they are no longer required to request employmentauthorization by filing Form I-765 but may continue to file FormI-765 if they choose to receive an EAD."

Wait a minute!! What did USCIS mean – "if theychoose to receive an EAD"?

Well, until USCIS and CBP updated their requirements as toacceptable documents to present for work authorization regarding Eand L-2 spouses, an EAD would still be necessary with its longdelays for the adjudication of the I-765 for Form I-9 completion.Of course, as of January 31, 2022, E and L dependents already inthe U.S. have options to obtain a new I-94 with the appropriatecategory code via reentry to the U.S. or even via an I-539extension if necessary. For those E and L spouses entering the U.S.on or after January 31, 2022, their I-94 should have theappropriate code.

What about spouses already admitted to the U.S. without thisnew code on their I-94 applying for an I-94 code reference viadeferred inspections?

Some attorneys are reporting that CBP may be willing to make thecode change within the I-94 system via request to a CBP deferred inspections office, but this optionwas noted as not available by SEARS. CBP normallycorrects "errors" via access to a deferred inspectionoffice, not to address new category codes which did not exist atthe time of the issuance of the I-94 record. So, as noted above, itmay be that a solution for some spouses in the U.S. will bedepartures to Mexico or Canada and requests for readmission togenerate an I-94 with the appropriate code. Admission to the U.S.is never a guaranteed situation. USCIS could, of course, alsoimplement an interim solution to allow a marriage certificate andvalid I-94 record in L-2 or E status to suffice for workauthorization in the interim for spouses in the U.S. as to List Cfor Form I-9 purposes; but so far, we have no indication of thispotential alternative being allowed.

Key Take Aways - Spousal Work Mobility

E-1, E-2, E-3, and L-2 spouses will be able to seek employmentupon admission to the U.S. and must carefully check the code ontheir I-94 record, which will be the key to their documentation ofwork authorization to an employer or for self-employment for thatmatter. As to labor shortages, employers desperate for help willhave a new pool of available workers much faster and without thebureaucratic delay of the adjudication of an EAD application. Forthose international companies trying to move international talentto the U.S. temporarily, spousal work authorization as a benefit isa major consideration as well for many recruits/foreign employeesto take assignments. It seems USCIS and CBP are doing somethingthat makes absolute sense.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.

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