Written by David S. Rugendorf
As of January 31, 2022, the US Customs and Border Protection has begun providing spouses of E and L-1 nonimmigrants with a special designation code upon admission to the United States. Following a lawsuit settlement that was announced in November, 2021, these spouses will be allowed to work in the United States immediately upon entry. These spouses will be issued I-94 forms with newly implemented classification codes upon entry (differentiating E and L spouses from children; children are not work authorized). The newly designated I-94 forms will be acceptable evidence of work authorization, per List C of Form I-9.
A spouse granted work authorization incident to status may apply for an EAD card, using Form I-765. However, that is no longer required to establish eligibility to work. Spouses with existing I-94s will be required to travel abroad to obtain one of the new I-94 designations. It has been reported that USCIS is also using the new designation codes on E and L spouse extension approval notices.
There has been some discussion to the effect that all E and L spouses are now authorized to work, regardless of whether they possess an I-94 with the new spouse designation or a currently existing I-94. However, this remains unclear. Further clarification is required from the CBP or USCIS before a spouse may assume that any form I-94 with or without the “S” classification may commence employment without an I-94 with the new designation. When this is clarified, we will update this bulletin.
Important note: any spouse of an L-1 or E nonimmigrant should always travel with a copy of their marriage certificate, to ensure they will receive the appropriate designation on their I-94 upon entry.