USCIS Issues Further Guidance on Employment Authorization for E and L Spouses
Starting on or about April 1, 2022, U.S. Citizenship and Immigration Services (USCIS) will issue spousal designation notices to E and L dependent spouses who possess valid Forms I-94 that were issued by USCIS before January 30, 2022 and therefore do not contain the new I-94 spousal annotation. These new notices, along with the spouse’s current, valid Form I-94, will be sufficient evidence of employment authorization under List C for Form I-9 employment verification. The agency will not issue these notices to E and L spouses whose current Forms I-94 were issued by U.S. Customs and Border Protection (CBP) after travel to the United States. USCIS continues to implement an automatic extension of EAD validity to E, H-4, and L-2 spouses who have filed a timely application to extend an EAD and have an unexpired I-94 for E, H-4 or L status.
A closer look
In the wake of the November 2021 U.S. Citizenship and Immigration Services (USCIS) policy change to consider E and L spouses to be employment authorized based on their valid E or L nonimmigrant status, the agency has begun implementation of the policy and issued new guidance on the next steps in the process. Starting on or about April 1, E and L spouses who are in possession of a valid I-94 issued by USCIS before January 30, and therefore lacking the new “S” spousal annotation, should receive a spousal designation notice from USCIS. This new notice can be presented in conjunction with their current non-spousal I-94 as evidence of work authorization for I-9 purposes. E and L spouses who have already received Forms I-94 indicating an “S” class of admission – generally, those issued after January 30 – may present their spousal I-94 as a List C employment authorization document in the I-9 employment verification process.
Beginning on or about April 1, 2022, E or L spouses age 21 and over who are in possession of an unexpired Form I-94 that was issued by USCIS before January 30, 2022 – and therefore, does not contain an “S” spousal designation – will receive a notice from USCIS indicating their spousal status. This notice, along with their unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, or L-2 nonimmigrant status, will serve as evidence of employment authorization for I-9 purposes.
E or L spouses who are under 21, or who have not received a spousal designation notice from USCIS by April 30, 2022, should email E-L-married-U21@uscis.dhs.gov to request a notice from USCIS.
USCIS will only send notices to individuals identified as qualifying spouses based on a Form I-539 approved by USCIS. Individuals who received their non-spousal Form I-94 from U.S. Customs and Border Protection (CBP) will not receive these notices, and may wish to contact their immigration counsel to discuss options for obtaining an I-94 indicating “S” spousal status. All E and L spouses have the option to travel and reenter with appropriate documentation of spousal status in order to obtain a spousal Form I-94.
USCIS has confirmed that an unexpired Form I-94 reflecting an E or L “S” designation is acceptable as evidence of employment authorization for spouses under List C of Form I-9. Therefore, E and L spouses who are issued an I-94 with the “S” annotation are authorized to work incident to their status and without the need for an EAD.
A List C document for Form I-9 purposes means a document that can be used to demonstrate employment eligibility; an E or L spouse presenting such an I-94 will also need to provide an acceptable identity document in order to complete the I-9 process. An E or L spouse who requests and obtains a USCIS EAD will continue to be able to present it as a List A document, demonstrating both identity and employment eligibility.
As a reminder, since November 2021, USCIS has been implementing an automatic extension of employment authorization document (EAD) policy for certain E, H-4, and L-2 spouses. The auto-extension policy applies to E, H-4 and L-2 spouses who have filed a timely application to extend an EAD and have an unexpired Form I-94 entry record for E, H-4 or L nonimmigrant status. This policy may be especially useful for E and L spouses who have not yet received a Form I-94 with the “S” spousal designation.
Eligible E, H-4 and L-2 spouses will receive an automatic extension through the earlier of: (1) the expiration date of their valid E/H/L Form I-94; (2) the approval or denial of their EAD renewal application; or (3) 180 days from the expiration of their previous EAD.
For Form I-9 employment eligibility verification purposes, the following combination of documents is acceptable in connection with an auto-extension:
- Form I-94 indicating unexpired H-4, E or L status;
- Form I-797C for a timely-filed EAD renewal application with a requested EAD category of (a)(17), (a)(18) or (c)(26); and
- A facially expired EAD in the same category, i.e., (a)(17), (a)(18) or (c)(26).