United States Citizenship and Immigration Services (USCIS) announced late last week new policy detailing the documentation E and L nonimmigrant spouses can use as evidence of employment authorization.
USCIS said, for E and L spouses who were issued their most recent I-94 from USCIS based on an I-539 application, it will automatically mail a notice by April 1, 2022, to all E or L spouses 21 years of age or older who have an unexpired Form I-94 issued before Jan. 30, 2022. That notice, combined with the unexpired Form I-94 displaying E-1, E-2, E-3, E-3D, E-3R or L-2 nonimmigrant status, will be sufficient as proof of employment authorization moving forward.
The notices will only be sent to the impacted spouses who filed a Form I-539 for an extension or change of status, USCIS said in the announcement.
Additionally, United States Customs and Border Protection (CBP) and USCIS confirmed last month it had adjusted the E and L Class of Admission (COA) codes for family members, for I-94s issued after January 30, 2022. 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. USCIS also began issuing I-94s with Approval Notices (upon approval of an I-539), reflecting the new COAs, after January 30, 2022. If issued an I-94 reflecting the new COA, E and L spouses may use it as proof of employment authorization.
If an E or L spouse did not file an I-539 application through USCIS for an extension/change of status, they will not receive the above-mentioned notice from USCIS and would likely need to travel and be readmitted to the U.S. to receive an I-94 with the new COA.
The attorneys at Garfinkel Immigration strongly advise individuals to consult with experienced immigration counsel to discuss their options before traveling outside of the U.S. to obtain a new I-94, as international travel may jeopardize some individuals’ pending applications/status. Note, it is only necessary to obtain an I-94 with the new COA if the E or L spouse desires work authorization.
These updated policies are a ramification of the settlement reached in mid-November in Shergill, et al. v. Mayorkas, which resulted in spouses of E and L visa holders being authorized to work incident to status. These spouses no longer need to apply for separate employment authorization documents after arriving to the United States.
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.