Automatic Work Authorization for Spouses of E and L Visa Holders

The Department of Homeland Security has confirmed that, effective January 31, 2022, spouses of E and L visa holders will receive a special notation on their Form I-94, confirming that they are spouses of these visa holders. Electronic I-94 records should now reflect an “S” for spouse to indicate authorization to work or “Y” for youth. For example, an L dependent spouse would be listed as “L2S”.

Spouses of E and L visa holders can now use the Form I-94 with a code for spouse as proof of work authorization and to complete the Form I-9 for employment. Their period of work authorization will match the expiration date on their Form I-94. Spouses of E and L can still apply for an Employment Authorization Document, but are no longer required to for employment purposes, as long as they are in valid immigration status.

Immigration attorneys (including me) have asked local CBP offices if they would “correct” the Form I-94s of these spouses to reflect the new spouse code without requiring international travel to get a new Form I-94. Unfortunately, for those residing in the Bay Area, the SF Deferred Inspections Office will only correct an I-94 to reflect the new code if:

• An E or L dependent was admitted January 31, 2022, or later;

• Lack of annotation was due to CBP error; and

• The E or L dependent entered through SFO/local port, or they reside locally in the SF Bay Area.

DHS is keenly aware of how terrible the processing times are for Employment Authorization Documents, and is taking such measures to reduce the number of applications it has to process.

By way of background, the E visa is available to Treaty Traders (E-1), Treaty Investors (E-2) and high-skilled workers from Australia (E-3). The L visa is available to executives, managers, and specialized knowledge workers of international companies.

This alert is for informational purposes only. Please contact me if you would like to discuss this development further.