USCIS Issues Counter-Intuitive Guidance On Documenting Employment Authorization For Dependent E Or L Spouses For I-9 Purposes

We previously reported that USCIS reached a settlement agreement that allows the spouses of foreign nationals holding E-1, E-2, E-3, and L-1 status to work "incident to status." This means that these spouses can work for any U.S. employer by virtue of their status and do not need to apply separately 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 U.S. Customs and Border Protection began issuing I-94 forms with new class of admission codes E-1S, E-2S, E-3S, and L-2S. (Previously the "S" was not included, meaning that dependent spouses could not be distinguished from dependent children.) The new guidance indicates that a dependent E or L I-94 containing the "S" serves as a List C document establishing employment authorization for I-9 purposes.