Employment Authorization Update for E and L Derivative Spouses Entering the United States | Tarter Krinsky & Drogin LLP

United States Customs and Border Protection (USCBP) has begun the process of implementing a federal court order following a lawsuit against the United States Department of Homeland Security regarding the immediate ability of spouses L and E to work in the United States without separately obtaining employment authorization cards. Some ports of entry have implemented the designation of L-2S on I-94 forms (arrival/departure records) or stamped passports for certain non-immigrant spouses who entered the United States after January 31, 2022 .

Going back to 2002, when Congress passed Public Law 107-125 allowing spouses to work based on their status, but without effective law enforcement by immigration agencies, automatic employment authorization for these spouses will be a huge relief to those who have, in some cases, waited nearly a year to obtain or extend employment authorization cards. Long waits at immigration agencies can be attributed to COVID-19 and other administrative delays.

The United States Citizenship and Immigration Services (USCIS) Policy Manual was recently updated to indicate that Forms I-94 (Arrival/Departure Records, issued to nonimmigrants at points of US entry) without specific designation of dependent L2 and E visa holders would not necessarily authorize the spouse to work unless specific updates were made to the list of valid employment authorization documents of the ‘USCIS from the United States Department of Homeland Security.

What does this mean today?

This week, the USCBP began issuing Form I-94s marked “L2S” for the spouse of L-1 visa holders entering the United States at ports of entry and a similar designation for the spouse of holders. We have verified with JFK Airport specifically that this approval will only be issued if a nonimmigrant foreign national enters the airport with L-2 or E nonimmigrant visa status; it does not apply to persons currently residing in the United States. We anticipate that international travel may be scheduled for the spouse to obtain a new L or E employment authorization on their Form I-94.

We look forward to receiving an update regarding the accepted list of documents for I-9 purposes in the USCIS M-274 manual, which will likely be addressed soon.

The USCIS, in its policy manual, also stated that one would still be allowed to file a formal request for an employment authorization document with the agency if they so choose.

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