The U.S. Citizenship and Immigration Services (USCIS) and the U.S. Customs and Border Protection (CBP) recently responded to a settlement that was reached in Shergill et al. v. Mayorkas. This settlement recognizes that the spouses of L-1 intracompany transferees L-2 and E-1/E-2/E-3 nonimmigrant visa holders can work based on their status as spouses of these nonimmigrant visa holders. First, however, this article will be discussing the dependent spouses of E and L visa holders.

Starting on November 12, 2021, E-1, E-2, E-3, and L-2 dependent spouses were authorized for employment based on their status according to the USCIS. This change is stated in the policy manual. The policy manual also indicates that having a Form I-94 that is solely notated with nonimmigrant statuses, such as “E-1,” “E-2,” “E-2C,” “E-3,” “E-3D,” “E-3R,” or “L-2,” is not enough to work as proof of a spouses’ employment authorization.

When L-1, E-1, E-2, or E-3 nonimmigrants choose documents from list A, B, or C in filling out their Form I-9, they generally use their I-94 admission record along with their passport as an acceptable combination from List A. E and L spouses will probably want to use this combination as well. However, they will need an I-94 with the new code on it. However, the spouse’s I-94 is dependent on the legitimacy of their principal nonimmigrant L or E spouse.

However, in this case, the problem is what documents dependent spouses can use to prove their L-2 status. The USCIS and CBP were trying to decide what documents would be suitable proof of L-2 status by March 10, 2022. However, the CBP released the changes to its COA on January 31.

The USCIS agreed that it would provide automatic extensions for work authorizations to L-2 nonimmigrants if they file their I-765 applications before the expiration of their EAD. This will extend their work authorization for as long as 180 days. However, this could be shortened by the end of the I-94 admission period.

Employers are required to re-verify an employee’s work authorization by the earlier of the date an I-765 application is granted or declined, the end of the EAD auto-extension period, or the end date on I-94. This can be difficult for employers. USCIS did point out that both L2 and E-dependent spouses are employment authorized based on their status; however, the documentation issued by the USCIS for these categories is still the same. According to the USCIS, the documents needed for support when filling out the application for an automatic extension of employment authorization are:

• Form I-94 indicating that the nonimmigrant status is unexpired 
• Form I-797C receipt notice for an EAD renewal application (Form I-765) stating “Class Requested” as (a)(17), (a)(18), or (c)(26), as applicable that has been filed in a timely basis
• Facially expired EAD issued in the same category (A17, A18, or C26)

According to a policy alert, since E and L dependent spouses have their employment authorized based on their status, they are not required to file Form I-765 to request employment authorization, But they can continue to do so if they want to obtain an EAD. This should no longer be necessary starting on January 31, 2022, 4 E or L dependent spouses already in the United States because they should be able to obtain a 994 with the appropriate category code. E and L spouses that entered the United States after January 31, 2022, should receive I-94 forms that already have the necessary code.

For spouses permitted entry to the United States without the new code on their I-94, the CBP might change the code within the I-94 system by requesting the CBP deferred inspections office. However, this option wasn’t indicated as being available by SEARS. Some spouses could choose to leave the United States and go to either Canada or Mexico and then request admission to the United States to obtain an I-94 with the appropriate code. However, there is the problem that admission to the United States is never guaranteed. It is also possible that the USCIS could allow a valid I-94 record in L-2 or E status to work in combination with a marriage certificate to be accepted as work authorization for a period of time for spouses in the U.S. as List C documents for Form I-9 purposes.

E-1, E-2, E-3, and L-2 spouses will now have work authorization based on their nonimmigrant spouse’s visa status. However, these spouses need to ensure that their I-94 records have the necessary code. These spouses could be a good source of workers for employers during the current labor shortages. Additionally, spousal work authorization could help convince foreign employees to work in the U.S., thus increasing the pool of talented foreign workers available for U.S. employers.

Are you interested in automating your employment eligibility verification? Ensure compliance today with I-9 Compliance.