United States - Work Visas (2024)

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After the United States (U.S.) Citizenship and ImmigrationServices (USCIS) recognized that E and L nonimmigrant spouses areentitled to work in the U.S. "incident to status" onNovember 12, 2021, a new Category of Admission (COA) codes werecreated for use in issuing Forms I-94. And onMarch 18, 2022, USCIS updated its PolicyManualto advise how certain E and L dependent spouses(age 21 and over) may document their work authorization for FormI-9 purposes in a new way. Please refer to ourprior blogregarding E and L spouseI-94s on this subject.

Who is affected by this Policy Change?

First, USCIS and CBP started issuing Forms I-94 with the new COAcodes for E and L spouses as of January 30, 2022 (e.g., E-1S, E-2S,E-3S, and L-2S). An unexpired I-94 with one of these new codes maybe accepted forList Cunder Form I-9.This means that when completing aForm I-9for a new hire, employers willstill need to request a List B identity document when presentedwith one of the new Form I-94 with these codes.

Second, for those E or L spouses age 21 or over withanunexpiredForm I-94thatUSCIS issued before January 30,2022, USCIS will mail a notice starting on or about April 1, 2022to these individuals. The notice, along with an unexpired Form I-94reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status,may be used for documentation of employment authorization for FormI-9 purposes.Thus, when an I-94 does not have the newCOA, the employer has to look at yet another form to complete ListC.

When does USCIS issue a Form I-94?

USCIS may issue a Form I-94 at the bottom of Form I-797 approvalnotice based on a status change or extension application. For E andL spouses, the USCIS form used to apply for an extension is FormI-539.

What if I do not receive the notice fromUSCIS?

If you are an E or L nonimmigrant spouse withaUSCIS issuedForm I-94 and have notreceived the USCIS notice byApril 30, 2022, pleaseuse E-L-married-U21@uscis.dhs.govto request a notice.

What does this Policy Change not address?

This is a Policy Change announced by USCIS, not U.S. Customs andBorder Protection (CBP). USCIS issues Form I-94 upon arrival in theU.S. via land, sea, or air. Typically, those applying for admissionto the U.S. will retrieve their electronic I-94 record from the CBPwebsite at:https://i94.cbp.dhs.gov/I94/#/home.CBP started issuing Forms I-94 with the new codes for E and Lnonimmigrant spouses on January 28, 2022.

What are the new approved Category of Admission (COA)codes being used by CBP?

E-1S – Spouse of E-1

E-1Y – Child of E-1

E-2S – Spouse of E-2

E-2Y – Child of E-2

E-3S – Spouse of E-3

E-3Y – Child of E-3

L-2S – Spouse of L-1A or B

L-2Y – Child of L-1A or B

Please note that USCIS is also using these codes whenapproving a change or extension concerning L or E dependent status,which is stated on the I-94 placed at the bottom of theI-797approval notice.These codes are only applied tonew arrivalstothe U.S. by CBP.

Will CBP "correct" an I-94 issued to an E or Ldependent spouse to include the new COA?

If E and L spouses and children last entered theU.S.afterJanuary 28, 2022, which isthe date that CBP began the use of the new COAs for E and Lnonimmigrant dependents, CBP will correct the I-94 via theCBPdeferred inspectionlocation closest tothe physical location of the nonimmigrant requiring the correction.In some cases, these corrections may be made via email.

Any qualified E and L nonimmigrant spouses and children, whoentered the U.S. priorto January 28th,2022, must contact USCIS for assistance with having their COAmodified.Note that if they depart the U.S. and areeligible to apply for readmission at a port of entry, CBP may issuea new I-94 with the appropriate code. It is essential to consultwith legal counsel before departing the U.S. to consideradmissibility requirements to be eligible to return to theU.S. Automatic VisaRevalidation(AVR) does not apply tothose with a pending change of status (not yetapproved).

So what does this mean for an E or L nonimmigrant spouserequiring a document for work authorization proof for Form I-9purposes ASAP?

First, for those E and L nonimmigrant spouses over 21 in theU.S. with a USCIS issued Form I-94 (e.g., normally those who wereapproved for extensions or changes of status by USCIS) without thenew COA code, they will be looking for USCIS notices VIA MAIL to beused in conjunction with their existing USCIS I-797 approvalnotices to prove work authorization for Form I-9 purposes. Theyshould mark April 30 on their calendar for the email follow-updescribed above to request the notice, if they have yet to receiveit by this date.

If an E or L nonimmigrant has an unexpired Form I-94 issued byCBP at a port of entry without the COA code, they can consider:

• If they entered the U.S. after January 28, 2022, and their FormI-94 does not have the new COA, then a CBP correction is possiblewhile remaining in the U.S. using a deferred inspection site, forexample.
• As to Forms I-94 issued by CBP on or before January 28, 2022,CBP directs these nonimmigrants to USCIS. Since USCIS only getsinto the I-94 business when they issue an approval notice with theI-94 at the bottom of the I-797 form. From a practical perspective,E and L nonimmigrants with an I-94 issued prior to the existence ofthe new COAs for E and L nonimmigrant spouses 21 and over will needto depart the U.S. to apply for readmission to the U.S. to obtain anew I-94 with the appropriate code in the most expedited way.

The positive side of this situation is that the options removethe burdensome impediment of lengthy waits for USCIS to adjudicateI-765 employment authorization applications for E and L spouses.The downside is that it would have been much easier to allow apassport and I-94 with the new code to serve as a List A document,in order to be consistent with other work-authorized nonimmigrants"incident to status" (e.g. principal E and Lnonimmigrants).

The ongoing lack of coordination between agencies implementinggood ideas is apparent in this saga. USCIS would not needtomailanything out regarding the new codes ifan L or E dependent spouse's I-94 combined with a validpassport and marriage certificate or the L-2 visa with theprincipal nonimmigrant's name had been deemed acceptable forForm I-9 purposes. Certainly, theSocial Security Administrationhasbeen using the marriage certificate approach for years to issuerestricted status social security numbers to E and L spouses. Now,L and E dependent spouses must put together their personal puzzlein this transition when they do not possess a USCIS I-94 orCBP issued I-94 with the appropriate new code. Small steps arestill good.

Bottom of I-797A with I-94 issued by USCIS without thenew L-2 spouse code

I-94 Electronic Admission Record Issued by CBP with newL-2 spouse code

Section 2 of Form I-9when the new COAI-94 ispresented for work authorization with an example of List B identitydocument choice by an employee. Note,if theunexpired I-94 issued by USCIS and I-797did nothave the correct new COA, then the employer would need tolook at the USCIS notice described in this alert. That informationwould typically be inserted in the information box of Section 2 ofForm I-9. As an idea, perhaps we insert the following:"USCIS notice as to dependent L/E COA reviewed." Wewill see.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.