Employment Authorization Update for E and L Derivative Spouses Entering the United States

February 8, 2022

U.S. Customs and Border Protection (USCBP) has begun the process of implementing a federal court order following a lawsuit against the U.S. Department of Homeland Security relating to the immediate ability of L and E spouses to work in the U.S. without separately securing employment authorization cards. Some ports of entry have implemented the designation of L-2S on the I-94 forms (arrival/departure records) or stamped passports for certain nonimmigrant spouses who entered the United States after January 31, 2022.

Harking back to 2002 when Congress passed Public Law 107-125 authorizing spouses to work incident to status, but with no actual implementation of the law by the immigration agencies, the automatic employment authorization for such spouses will prove a huge relief to those who have, in some instances, waited for almost a year to secure or extend employment authorization cards. The long waits at the immigration agencies may be attributed to COVID-19 and other administrative delays.

The U.S Citizenship and Immigration Services (USCIS) Policy Manual was recently updated to state that Forms I-94 (arrival/departure records, issued to nonimmigrants at U.S. ports of entry) without specific designation of L2 and E dependent visa holders would not necessarily authorize the spouse to work unless specific updates were made to the U.S Department of Homeland Security’s list of USCIS-valid employment authorization documents.

What Does this Mean Today?

This week, the USCBP began issuing Forms I-94 bearing an “L2S” endorsement for the spouse of L-1 visa holders entering the U.S. at ports of entry and similar designation for the spouse of E visa holders. We have verified specifically with JFK Airport that this endorsement will only be issued if a foreign national nonimmigrant enters at the airport with nonimmigrant L-2 or E dependent visa status; it does not apply to those currently residing in the U.S. We anticipate that an international trip might be planned for the spouse to secure new L or E employment authorization endorsement on their I-94.

We look forward to receiving an update regarding the accepted list of documents for I-9 purposes in the USCIS M-274 Manual which will likely be addressed soon.

USCIS, in its Policy Manual, also indicated that one would still be permitted to file a formal employment authorization document request with the agency if they so desire.

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