As previously reported, under a new policy, USCIS will consider E and L nonimmigrant dependent spouses to be employment authorized incidental to their status. This means that upon admission and issuance of a valid I-94 document showing E or L-2 spousal status, E and L nonimmigrant spouses will automatically be authorized to work without the need to apply to USCIS for an Employment Authorization Document (EAD).
The L or E spouse who wishes to work without obtaining an EAD must present an I-94 admission document with a spousal annotation for Form I-9 employment verification purposes. U.S. Customs and Border Protection Headquarters (CBP HQ) has now confirmed that as of January 31, 2022, it has implemented admission codes so that the E and L spouse’s I-94 issued at a Port of Entry to the U.S. will bear the required annotation. The I-94 will be annotated with an “S” next to the E or L-2 status designation, signaling to prospective employers that the individual is authorized to work during the validity period of the I-94. Spouses admitted in E or L-2 status should review their I-94 document immediately upon admission to ensure that it contains the appropriate annotation.
E and L Spouses without Annotated I-94s
E and L spouses who were admitted prior to January 31, 2022 and who possess an I-94 without the “S” annotation must still present an EAD for work authorization. As USCIS may take several months to process the EAD application, these individuals may consider departing the U.S. and reentering at a Port of Entry to secure a new, “S”-annotated I-94 from CBP. However, individuals should confer with immigration counsel prior to international travel to confirm that they possess the appropriate documentation for readmission to the U.S. and that their travel will result in issuance of a new I-94. For example, reentry to the U.S. after a brief trip to Mexico or Canada typically does not result in issuance of a new I-94.
There are anecdotal reports that some CBP Deferred Inspection offices may be willing to amend the I-94 record to include the “S” annotation without international travel. This is discretionary. The local CBP Deferred Inspection office with jurisdiction over the admission should be contacted in advance to ascertain whether it will consider the request.
For those spouses who were admitted to the U.S. prior to January 31, 2022 and who have filed an application to extend their L or E status while in the U.S., USCIS is also expected to implement the “S” annotation on the I-94 issued with the Notice of Approval (I-797).
Work Authorization for H-4 Spouses
As a reminder, this benefit is only available for E and L spouses. Nonimmigrant H-4 spouses are required to have a valid I-94 document showing H-4 status and an EAD for employment. However, pursuant to new USCIS policy, H-4 spouses may receive an automatic extension of work authorization when they file to renew their EAD provided:
- The I-765 application to renew the EAD is timely filed prior to the EAD expiration date and
- The H-4 spouse has an unexpired I-94 showing valid H-4 status.
If the spouse has filed an I-539 application to extend H-4 status, the H-4 spouse will not qualify for the auto-extension of the EAD until the underlying H-4 status is granted.
The automatic extension of the EAD will be valid until:
- Expiration of the underlying I-94 showing H-4 status;
- 180 days from the prior EAD expiration; or
- Adjudication of the I-765 extension application, whichever comes first.
L-2 and E spouses who are relying on an EAD for employment may also benefit from the automatic extension of the EAD under the same terms and conditions described above.
Gibney will continue to monitor implementation of the policies, and will provide updates. In the interim, if you have any questions, please contact your designated Gibney representative or email info@gibney.com.
