In November 2021, U.S. Citizenship and Immigration Services (USCIS) announced several policy changes impacting the work authorization of spouses of H-1B, L-1, and E visa holders. In addition to providing for automatic extensions of Employment Authorization Documents (EADs) in certain cases, the policy changes included a recognition that L-2 and E dependent spouses would be “work authorized incident to status.” This positive development meant that with the appropriate designation on an individual’s I-94 Arrival/Departure Record, an L-2 or E dependent spouse could lawfully work in the United States without having to apply and wait for an EAD, applications for which currently involve lengthy processing times.

In its announcement, USCIS noted that “employers will need to wait for employees to be issued an I-94 Arrival/Departure Record indicating their status as an L-2 or E spouse in order to properly complete the Form I-9 Employment Eligibility Verification process.” On January 31, 2021, both USCIS and U.S. Customs and Border Protection (CBP) began issuing I-94 records with specific designations to differentiate L-2/E dependent spouses and children.

L-2 and E dependent spouses are now being designated as L-2S and E-1S, E-2S, or E-3S, and L-2 and E dependent children are now being designated as L-2Y and E-1Y, E-2Y, or E-3Y. With the new designations, employers are now able to use a dependent spouse’s I-94 record as a valid List C document for purposes of Form I-9 completion. Dependent children of L or E visa holders are not eligible for employment authorization.

According to current Department of Homeland Security policy, new I-94 records with the spouse/child designation are available only upon admission into the United States by CBP or upon the issuance of a new I-94 by USCIS (typically done in connection with an extension or change of status). L-2 and E dependent spouses currently in the United States without the new I-94 designations will need to continue relying on EADs (and EAD renewal application receipt notices in some cases) to demonstrate their eligibility to work in the United States.

Foster will continue to monitor USCIS policy changes impacting immigration processes and will make future updates available via the Foster website at www.fosterglobal.com.