The U.S. Department of Homeland Security (DHS) has instituted a policy enabling E and L-1 nonimmigrant dependent spouses employment authorization immediately upon their lawful admission into the U.S. This eliminates the need for these dependents to file an Application for Employment Authorization with U.S Citizenship and Immigration Services (USCIS) avoiding the long delays in processing these applications.
This change took place as a result of the settlement agreement in the lawsuit, Shergill v. Mayorkas, in the U.S. District Court of the Western Districts of Washington. Spouses of L and E visa holders brought this class action lawsuit to address the lengthy processing delays in USCIS adjudicating Employment Authorization Documents (EADs). In the settlement, USCIS agreed to change its policy and develop a procedure whereby E and L spouses would receive annotated Form I-94, Arrival and Departure record within 120 days of the settlement.
On January 31, 2021, USCIS along with U.S. Customs and Border Protection (CBP) began to implement a new procedure whereby E and L spouses arriving in the U.S. receive these annotated I-94. The new annotation would specify their status as E and L spouses, thereby serving evidence of employment authorization. Spouses of E and L visa holders should carry documentation confirming the marital relationship and evidence of their spouse’s status. They should be politely proactive in identifying themselves as an E and L visa holder spouse. If the CBP officer fails to make the required annotation, they should carry with them the November 2021 announcement and ask to speak to the supervisor to resolve the confusion. It is important to make sure your I-94 is properly annotated since CBP hasn’t announced any procedures to remedy those who were mistakenly refused such annotation. E and L spouses should be admitted with an “S” after their status to indicate that they are spouses authorized to work.
If you are a spouse of an L or E visa holder still in the U.S. that arrived before January 31, 2021, CPB and USCIS still haven’t announced the procedure on how to seek revised I-94 records showing the annotation. In the meantime, if you entered the U.S. before January 31, consulate an experienced immigration attorney and consider departing the U.S. and reentering to receive the annotated I-94 record.
Although DHS has yet to publicly announce specific I-9 instruction taking the above into consideration, employers should accept the new annotated I-94 records as List C documents for purpose of verifying employment authorization. Employers should also accept an I-797 approval notice issued by USCIS when it grants E or L status who applied for a change of status. It is important employers no longer require the EAD cards to confirm work authorization if E and L spouses choose to present an annotated I-94 instead of the card. E and L spouses are still able to file for EAD with USCIS and receive the card, although not required.
If you have questions about the employment authorization for spouses of E and L visa holders or any other immigration-related issue, contact us at ILBSG. We actively monitor ongoing policies and immigration processes to ensure our clients get the right advice.