USCIS Releases Counterintuitive Guidance on Documenting Employment Authorization for Dependent E or L Spouses for I-9 Purposes | Harris Beach LLC

We Previously reported that USCIS has reached a settlement agreement that allows spouses of foreign nationals with E-1, E-2, E-3, and L-1 status to work “incidentally to status.” This means that these spouses can work for any U.S. employer under their status and do not need to separately apply for an employment authorization document or EAD card.

On March 18, 2022, USCIS issued a Policy Alert with guidance on how E-1, E-2, E-3, and L-2 spouses can document their employment authorization. Specifically, the policy alert notes that on January 30, 2022, USCIS and United States Customs and Border Protection began issuing Forms I-94 with a new class of E-1S admission codes. , E-2S, E-3S and L-2S. (Previously, the “S” was not included, which meant that dependent spouses could not be distinguished from dependent children.) The new guidelines state that a dependent I-94 E or L containing the ” S” serves as a List C document establishing authorization for use for I-9 purposes.

Persons in dependent status E or L who have not traveled internationally since January 30, 2022 and/or who have not changed their status or extended their stay since this date will not have an “S” included in their admissions class and will not be able to use their existing I-94 as proof of employment authorization. CBP said it will not issue corrected Form I-94s to people who last entered the United States before January 30, 2022. However, the new policy alert says USCIS will send notices to those individuals who, along with their I-94, will serve as a List C document for Form I-9.

This orientation is counter-intuitive. Normally, a passport and the I-94 together constitute a List A document for I-9 purposes, establishing both identity and employment authorization. But since the new guidelines state that an I-94 with the “S” in the annotation or accompanied by a USCIS notice will serve as a List C document, these must now be paired with a List B document. to establish identity. List B documents include the following:

  • Driver’s license or ID card issued by a state or outlying territory of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, color eyes and address.
  • Identification card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and height. ‘address
  • School photo ID card
  • Voter’s card
  • S. military card or draft file
  • Dependent military ID card
  • S. Coast Guard Merchant Mariner Document Card (MMD)
  • Native American tribal document
  • Driver’s license issued by a Canadian government authority

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