Certain nonimmigrants are authorized to engage in employment incident to their immigration status. This includes principal workers admitted to the U.S. in, for example, E-1, E-2, H-1B, L-1, O-1, and TN status.
The spouse of an L-1 or E nonimmigrant worker present in the U.S. also is authorized to engage in employment in the United States. Historically, however, U.S. Citizenship and Immigration Services (USCIS) has taken the position that such spouses were required to obtain an Employment Authorization Document (EAD) prior to beginning employment. This requirement had become a significant problem since USCIS routinely takes about a year to approve EAD applications.
Following settlement of litigation in federal district court in November 2021, the Department of Homeland Security agreed that the spouses of L-1, E-1 and E-2 workers are authorized to engage in employment incident to their status. Accordingly, such spouses are no longer required to obtain an EAD prior to commencing or continuing employment in the United States.
Customs and Border Protection (CBP) is following a new coding protocol for nonimmigrant L and E dependents. The new class of admission (COA) codes for L and E dependents were provided to CBP at ports of entry in guidance issued on January 31, 2022. Electronic Form I-94 admission records should now reflect an “S” for spouse to indicate work authorization incident to status. For example, an L dependent spouse would be listed as “L-2S.”
Children of nonimmigrant L or E principals are not authorized to engage in employment incident to their status. Children should be issued a Form I-94 with a “Y” designation for youth.
To obtain an L-2S, E-2S, or E-2S designation on Form I-94, individuals may need to affirmatively request this designation from a CBP officer at primary inspection when seeking admission to the U.S. Individuals should be prepared to present poof of the marital relationship, usually a marriage certificate, and, if the principal nonimmigrant worker is not accompanying the dependent spouse, also have available a copy of the principal’s Form I-94, admission record.
Dependent L and E spouses already present in the U.S. on January 31st are not eligible to change their Form I-94 at a CBP Deferred Inspection office to reflect the “S” designation. CBP takes the position that the original admission was not an error and therefore they will not “correct” the designation issued upon admission. A CBP Deferred Inspection Office will correct a Form I-94 to reflect the new COA only if an L or E dependent was admitted on or after January 31st or the failure to make the correct annotation at the port of entry was due to CBP error.
Dependent L and E spouses in possession of an unexpired L-2 or E visa (or who are visa exempt) may, however, depart the U.S. and, upon being readmitted should be able to receive the new “S” designation. This may be an efficient workaround for dependent spouses waiting many months for an EAD filed with USCIS.
Less clear is whether and when guidance to employers will be forthcoming on completion of Form I-9 utilizing a Form I-94 including an “S” designation as proof of employment authorization.
Prepared by Kenneth Harder, Advisory Board MemberLast modified: April 13, 2022