Update May 12, 2022
On Nov. 12, 2021, USCIS issued a policy announcement to clarify that it will consider E and L spouses to be employment authorized based on their valid E or L nonimmigrant status. Since the November 2021 announcement, the Department of Homeland Security added new Class of Admission (COA) codes to distinguish between E and L spouses and children.
As of Jan. 30, 2022, USCIS and CBP began issuing Forms I-94 with the following new COA codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9.
CBP confirmed on November 12, 2022, that it proactively went into the electronic I-94 card system to update all L-2 I-94s for L-2 spouses, 22 years of age or older, to add “S” to the status for those who entered prior to 1/31/22. Those entering 1/31/22 or later have had the “S” added upon entry to the U.S.
CBP did not add the “S” to L-2 I-94 cards for foreign nationals ages 18-21 at time of entry, due to uncertainty about whether they were dependent spouses or children. This subset of I-94s cannot be updated through Deferred Inspection either. It also was unable to make this adjustment for E-2 spouses as it is not possible to distinguish between an E-2 principal and an E-2 dependent spouse.
The “S” will need to be added to applicable I-94s on next entry to the U.S., by presenting evidence of spousal relationship, or through the next filing with USCIS.
Update May 4, 2022
Update November 15, 2021
USCIS has issued policy guidance to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses.
Again, note the following: “the automatic extension of the EAD will continue until the earlier of: the end date
on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD.
In short, if your H-4 extension is approved first, your pending H-4 EAD renewal will benefit from the full 180-day automatic extension.
H-4 spouses may now benefit from auto ext of their EADs. Once renewal EAD is timely filed, the expiring EAD will be extended up to 180 days. Work authorization is now incidental to L-2. Meaning that L-2 holders may work without having to apply for EAD.
USCIS will amend the H-4 EAD receipt notice to detail the auto-extension eligibility. USCIS will also issue policy guidance that states that L-2 spouses are employment authorized incident to status.
We’ll provide updates as news comes in.