Customs and Border Protection (CBP) formally confirmed that, effective January 31, 2022, the previously announced H-4, L, and E work permit changes have been implemented in their I-94 systems and within United States Citizenship and Immigration Services (USCIS).
The new guidance comes after the November 12, 2021 USCIS announcement resulting from the Shergill v. Mayorkas litigation settlement. Notably, L and E nonimmigrant visa spouses will now retain automatic work authorization incident to status (meaning that they will no longer be required to apply for an EAD prior to working in the United States). Although H-4 spouses are not eligible for work authorization incident to status, the new guidance does provide H-4 spouses the benefit of automatic EAD extensions in certain cases.
Effective January 31, 2022, CBP has created new E and L Class of Admission codes to be used I-94 Arrival/Departure records that are issued at ports of entry throughout the United States. These new codes will serve as evidence of U.S. work authorization and legal status, and an EAD will no longer be required to confer employment authorization to L-2 and E-2 dependent spouses. Accordingly, USCIS has updated its I-9 policy guidance to confirm that employers can now accept I-94 documents containing the L and E spousal designations as “List C” evidence of employment authorization. The following new I-94 category codes were created:
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 L-1B
L-2Y - Child of L-1A or L-1B
While these changes are now effective within the United States immigration system, it is important to note that CBP is not retroactively updating I-94 admission records for L-2 and E-2 spouses already in the United States. As such, employers should individually assess each I-94 presented by foreign nationals as evidence of employment authorization. For foreign nationals, there are two pathways to quickly obtain the new I-94 annotations:
L-2 and E-2 spouses can either depart the United States and re-enter the country using their currently-valid visa stamp after authorized foreign travel; or
In the case of an expired visa stamp, re-enter following brief travel to Canada or Mexico through Automatic Visa Revalidation with a USCIS-issued I-94 contained on the bottom of an I-797 Approval Notice.
As always, we advise contacting your D&S professional prior to any planned travel. While CBP is still rolling out these changes, qualifying spouses should travel with a copy of their marriage certificate to demonstrate eligibility for the new spousal I-94.
While more guidance is likely to be released regarding the E, L, and H-4 spouse work authorization changes, the February 7, 2022 announcement provides some initial clarification and formally implements much-needed relief for eligible nonimmigrant spouses that have been negatively impacted by USCIS backlogs in processing EAD work permits.
D&S will continue to monitor the situation and provide updates as they become available.