L-2 and E Dependent Spouses: CBP Begins Implementing New I-94 Designations

U.S. Citizenship and Immigration Services (USCIS) recently issued policy guidance addressing the automatic extension of status for H-4, L-2, and E dependent spouses in response to the settlement of a class action lawsuit.

The guidance states that USCIS will consider L-2 and E dependent spouses (but not H-4 dependent spouses) work-authorized incident to their status, meaning that these dependent spouses will not need an employment authorization document (EAD) to work in the United States. As part of this policy change, USCIS indicated that it would work with U.S. Customs and Border Protection (CBP) to update the I-94 system to indicate work authorization, as the system in place does not differentiate between work-authorized L-2 and E dependent spouses and non-work-authorized L-2 and E dependent children. USCIS had initially indicated that the new I-94 system would be implemented within 120 days of the policy announcement in November 2021.

On January 31, 2022, CBP began implementing the new I-94 system at ports of entry throughout the United States, issuing admission codes so that E and L spouses’ I-94s now bear a spousal designation in the form of an “S” next to the E or L2 designation (e.g., an L-2 spousal I-94 is now designated as “L2S”). For E and L-2 dependent spouses who last entered the United States before January 31, 2022, and who have pending E dependent or L-2 extension-of-status applications with USCIS, it is expected that USCIS will soon issue approval notices with the new designation. If an E or L-2 dependent spouse has the new “S” designation on his or her Form I-94, an EAD is no longer required for that individual’s work authorization.

In order to establish work authorization in the United States, employees must provide documentation to their employers to prove identity and authorization to work by completing a Form I-9. An I-94 with the proper spousal designation serves as an acceptable “List C” document for I-9 work authorization verification purposes. In addition to providing a properly designated I-94, an E or L-2 dependent spouse must provide additional documentation to establish his or her identity (i.e., “List B” documentation).

A Form I-94 notated without the spousal designation is not sufficient evidence of employment authorization for Form I-9 at this time and a valid EAD (or, under certain circumstances, a pending EAD renewal) is required for continued work authorization.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.