Immigration Law Alert – 2/16/22

Please see below for a summary of recent Department of Homeland Security (DHS) announcements regarding structural changes for H, L and E nonimmigrant spouses and their work authorization.

Work Authorization Incident to Status for Certain E and L Spouses

As of January 31, 2022, Form I-94 Arrival Record for spouses of E and L may be annotated to demonstrate that they are work authorized  “incident to their status.” All E and L spouses with an appropriately annotated Form I-94, will no longer be required to secure an Employment Authorization Document (EAD). Please note that newly annotated Form I-94 is issued to E and L spouses as follows:

  • Upon USCIS issuance of an Approval Notice (Form I-797) with Form I-94 attached for extension of stay or change of status [NOTE: In the coming months, we anticipate USCIS will begin issuing I-797 Approval Notices that have a Form I-94 with “S” annotation]; or
  • Upon US Customs and Border and Protection (CBP) admission Form I-94 is issued with presentation of proper L or E spousal status documents (i.e., marriage certificate, evidence of spouse’s E or L approval, etc.) [NOTE: US CBP has adopted E and L spousal Form I-94 annotations].

Only E and L spouses that receive the newly annotated Form I-94 may benefit from this immediate work authorization. Spouses of E and Ls in the US with existing Form I-94 issued prior to January 31, 2022 may apply for EADs by filing an I-765 application with USCIS to demonstrate their employment authorization.

At the time of any US CBP admission, E and L-1 spouses should verbalize their status as a spouse of an E or L beneficiary and request to be granted a Form I-94 with the following new codes of admission:

  • E-1S – Spouse of E-1
  • E-2S – Spouse of E-2
  • E-3S – Spouse of E-3
  • L-2S – Spouse of L-1A or B

Upon entry to the US, the E or L spouse can print their Form I-94 at indicating they were admitted with the appropriate admission code and status noted above.  When L and E dependent spouses are admitted into the US, their Form I-94, Arrival/Departure Record, should have an “S” after their status, specifying that an individual is the spouse (as opposed to the child) of an L or E nonimmigrant.  The “S” annotation on the I-94 will indicate that the individual is work-authorized incident to status as an L-2 or E spouse. Form I-94 with the appropriate annotation can be presented with their passport as a List A documents for immediate work authorization. An EAD will no longer be required for work authorization if a Form I-94 with the above status/class of admission designations can be provided by the E or L spouse.


Automatic Extension for Certain Spousal E, H, and L EADs

On November 12, 2021, USCIS announced the implementation of a new policy permitting 180-day automatic EAD extension validity to certain E, H and L spouses who have timely filed a I-765 application to extend their EADs and have an unexpired Form I-94. Note, spousal E, H and L EAD extensions may be filed concurrently with the E, H and L spouse’s extensions of status. In these circumstances, the E, H or L spouse may not have a valid Form I-94 at the time of their EAD expiration as their status extension is pending and they are in the US in an authorized period of stay with an expired Form I-94.

For I-9 work authorization verification purposes the E, H, or L spouse must show the following to secure a 180-day auto work extension:

  • Valid Form I-94 evidencing current and unexpired H, E or L spousal status;
  • Form I-797C evidencing a timely filed I-765 renewal application with a requested EAD category of (a)(17), (a)(18) or (c)(26); and
  • A facially expired EAD in the same category.

An eligible E, H or L spouse who receives an automatic work extension above, will be subject to expiration upon the earliest occurrence of the three below listed events:

  • Expiration date of their valid Form I-94;
  • Approval or denial of their EAD extension application; or
  • 180 days from the expiration of their previous EAD.

Please see link here for additional details:

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