SpiritOne
When completing Form I-9, businesses should follow new instructions from USCIS on considering the work permit of certain E and L spouses. After receiving an I-797 approval notification from the U.S. government. Then spouses of E and L visa holders can utilize that letter for work authorization.
On March 18, 2022, the USCIS issued new policy guidelines on the paperwork that E and L spouses can use to finish Form I-9.
Revised Guidance on E and L Spouse Work Authorization
To address the documents. Some nonimmigrant E and L spouses may provide as proof of employment permission depending on their nonimmigrant status. So, the USCIS is amending guidelines in the USCIS policy manual.
To be clear, USCIS made a policy notice on November 12, 2021. Stating that it may consider E and L spouses for employment. If they have an E or L status of nonimmigrant.
To distinguish between E and L spouses and children, Homeland Security established new COA codes in November 2021.
For particular E and L spouses, the CBP and USCIS started issuing Forms I-94 with COA codes: L-2S, E-2S, E-1S, and E-3S. For spouses on List C, Form I-94 that has not expired is sufficient proof of employment permission.
Those E or L spouses above the age of 21 with a Form I-94 that has not expired. If issued by USCIS before January 30, 2022. They will get a notification from USCIS starting on or around April 1, 2022. A valid Form I-94 showing nonimmigrant status in the E-1, E-3D, E-2, L-2, or E-3R categories will qualify for work eligibility.
USCIS will only issue notices to those who have a Form I-539 that USCIS has authorized as an eligible spouse. Visitors should go to www.cbp.gov if they have obtained their Form I-94 through the CBP (United States Customs and Border Protection).
Background
Customs and Border Protection began using new COA codes E and L on January 31, 2022. The CBP I-94 paperwork of spouses of E and L holders will now have the updated codes. The new numbers on an I-94 certificate will prove legal status and work permits for U.S. citizens. And permanent residents alike.
Until USCIS issues guidelines, employers will not be able to use the new codes on Form I-9. Once the new code is made available, anybody may acquire I-94 paperwork proving their legal status and show it to their employer as proof of their ability to work.
The DHS (Department of Homeland Security) will no longer need an Employment Authorization Document (EAD) for qualifying nonimmigrants. This is an update on the Shergill v. Mayorkas settlement agreement, which recognizes that L and Espouses are entitled to work incidentally to their status.
Details
E-1D, E-2D, and E-3D dependent spouses will be covered by the same policy guidance published for L-2 spouses on November 12, 2021, by USCIS. A valid Form I-94 and proof of timely renewal of their present EAD were sufficient to qualify for an automatic extension of their current authorization to enter the United States for E-dependent spouses.
Even after USCIS and CBP updated Form I-94, E-dependent spouses would have been able to utilize their valid I-94 to prove their work permission for future I-9 purposes. However, they can still file for an employment authorization document (EAD).
Many believe that the I-94’s new notations aren’t essential and are open to accepting an E or L spouse’s I-94 without them. The ICE (Immigration and Customs Enforcement) has yet to rule whether an I-94 constitutes an I-9 violation.
E and L spouses who have received a notice from USCIS or Form I-94 that has not expired issued by USCIS before 30TH of January, 2022, will receive notifications from the U.S. Citizenship and Immigration Services.
Employment Authorization Proof
As proof of employment authorization, USCIS will provide this notification around April 1, 2022, along with a Form I-94 (unexpired) indicating E-3, E-3R, E-1, E-2, or L-2 status. It is usually a good idea for nonimmigrants to submit AR-11 within ten days after moving to ensure that USCIS has the correct address.
It is expected that Seyfarth Shaw will provide more notifications as the situation progresses. People can send any inquiries to the writers through email or the Seyfarth Shaw point of contact.
E-dependent spouses would get the same benefits as L-2 spouses. But they would not be able to work after the expiration of their I-94.
U.S. Citizenship and Immigration Services has enhanced the eligibility of L-2 and some H-4 spouses for work permission due to an agreement.
Beneficiaries of the EAD Level 2
As of March 10, 2022, they updated the I-94 form for L-2 spouses. And it indicates that it acts as a List C document for I-9 purposes by USCIS and Customs and Border Protection (CBP). Once they present the I-94 and a List B document, the spouses of L-2 visa holders will be able to work. The USCIS ties a person’s I-94 card’s validity to the expiration of his or her work authorization. This new technique will replace the necessity to have a valid Employment Authorization Document (EAD). Which might take up to a year from the first or renewal application to process.
Beneficiaries of H-4 EADs
Suppose their application for an extension of the EAD is still ongoing. And they have an outstanding I-94. In that case, H-4 visa holders may extend their work authorization. But, only for up to 180 days beyond the expiration of their present EAD. There will be no employment authorization extension granted to someone whose H-4 status has expired fewer than 180 days before their new H-4 status expires. Thus, they will terminate employment authorization on the date of the refusal of the application for a new EAD.
Final Thoughts
Despite the settlement’s considerable reversal of past USCIS policy, H-4 dependents may still encounter difficulties due to lengthy processing delays.
In the absence of premium processing service for dependent applications. The accompanying EADs and significant backlogs at USCIS processing timeframes will continue to take many months.
These new regulations will be reflected in new guidelines issued by USCIS. As these new regulations take effect, further information may become accessible.
