Certain visa categories allow a dependent spouse visa holder to obtain work authorization in the U.S. For example, previous to the recent policy change, the spouse of an L-1 visa holder was entitled to apply for an L-2 visa, enter the U.S., and file a Form I-765, Application for Employment Authorization after entering the U.S. to obtain an Employment Authorization Document ("EAD").
After filing Form I-765, the L-2 spouse would only be work authorized if and when such an application were approved and the EAD were issued. This would often present problems as the Form I-765 takes many months for adjudication, leaving spouses without work authorization for extended periods of time.
However, as of January 31, 2022, the U.S. Customs and Border Protection has begun providing spouses of E and L-1 nonimmigrants with a special designation code upon admission to the United States (i.e. “E-2S” and “L-2S”). This designation alone will authorize a spouse to work in the U.S. Indeed, the newly designated I-94 forms will be acceptable evidence of work authorization as per List C of Form I-9.
While the filing of an I-765 application is no longer required to establish work authorization, a spouse granted work authorization incident to status may still apply for an EAD card by filing a Form I-765 if so desired. Spouses with existing I-94s will be required to travel abroad to obtain one of the new I-94 designations. We have seen reports that USCIS is also using the new designation codes on E and L spouse extension approval notices. USCIS has also announced that it will issue a new approval notice to all spouses who received an I-94 via USCIS (i.e. by filing a Form I-539 to extend status) prior to January 30, 2022 beginning on or about April 1, 2022. This notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R or L-2 nonimmigrant status will serve as evidence of employment authorization.
It is important to always check every immigration document to ensure it is correctly issued. For example, upon every entry, a foreign national should check his/her I-94 information online. If entering as the spouse of an E or L principal, the classification listed on the I-94 must include the special designation mentioned above. In light of this new benefit, we always recommend that any spouse of an L-1 or E nonimmigrant always travel with a copy of their marriage certificate to ensure the spouse will receive the appropriate designation on the spouse’s I-94 upon entry.
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