United States Customs and Border Protection (CBP) has implemented some key updates that will significantly impact work authorization eligibility for spouses of E and L visa holders.
On February 9, 2022, the government confirmed that CBP adjusted the E and L Class of Admission (COA) codes for family members on January 31, 2022. This update was made in accordance with the settlement reached in mid-November in Shergill, et al. v. Mayorkas, wherein spouses of E and L visa holders will now be authorized to work incident to status, once issued a Form I-94 with the new COA. They will no longer have to apply for separate employment authorization documents after arriving to the United States.
The Form I-94s, issued after January 31, 2022 for family members, now reflect that change. The new COAs follow below:
- 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 B
- L-2Y: Child of L-1A or B
CBP officers will assign individuals one of the above codes, if applicable, at the point of admission to the United States, according to the American Immigration Lawyers Association.
Spouses of E and L visa holders who are already in the United States and wish to obtain a Form I-94 reflecting the new COA must depart the United States and then re-enter the country, with the required admission documents including a valid spousal L-2 or E-2 visa stamp. Form I-94s that are issued through U.S. Citizenship and Immigration Services (USCIS) after filing for a change or extension of status will also reflect the new COA. The government confirmed that CBP Deferred Inspection sites will not change already-issued I-94s for the new COA, thus requiring the departure and reentry to the United States.
USCIS also updated its I-9 and E-Verify sites to reflect the change in policy, officially permitting Form I-94 reflecting the new COA to serve as appropriate List C documentation for Form I-9 purposes.
The attorneys at Garfinkel Immigration Law Firm recommend E and L spouses have a copy of their marriage certificate when reentering the United States to prove their eligibility for the E-1S, E-2S, E-3S, or L-2S COA, in addition to copies of the principal E or L visa holder’s underlying admission documents. It is also important to ensure the principal E and L holder has valid underlying status and work authorization documents, as the E and L spousal work authorization/I-94s are dependent upon the principal holder’s status and work authorization. For questions related to eligibility and admission under the new COA, we recommend consulting with experienced counsel at Garfinkel Immigration Law Firm.
The implementation of this policy comes as a result of a settlement reached in mid-November in Shergill, et al. v. Mayorkas. Per the terms of the settlement, United States Citizenship and Immigration Services (USCIS) agreed to “change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 (or E) spouse so that it can be used as a List C document for Form I-9 purposes.”
The settlement and resulting updated policies should help thousands of individuals whose case adjudications have been delayed because of backlogs at USCIS, which stem from the COVID-19 pandemic and other factors.
“AILA’s membership has long advocated for the correct statutory interpretation, and we’re delighted to have reached this agreement,” American Immigration Lawyers Association Director of Federal Litigation Jesse Bless said in a statement about the settlement released in November. “It is gratifying that the administration saw that settling the litigation for nonimmigrant spouses was something that should be done and done quickly.”
Last year, USCIS also suspended a Trump-era policy that required biometric screenings for H-4 and L-2 visa holders in an effort to reduce backlogs.
The attorneys at Garfinkel Immigration continue to monitor USCIS updates and new policy guidance regarding these changes. Please contact the attorneys at Garfinkel Immigration Law Firm with any questions and/or to receive more information.