On March 18, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it would update the USCIS Policy Manual to address acceptable evidence of work authorization for E and L nonimmigrant spouses. The updates, provided in response to the settlement agreement reached in the class action Shergill v. Mayorkas, also address Forms I-94 issued by USCIS prior to January 31, 2022.

Background

On November 10, 2021, as part of the settlement agreement in Shergill v. Mayorkas, USCIS announced that E and L nonimmigrant spouses would have work authorization incident to status. As part of the agreement, USCIS further agreed to create a new I-94 designation for E and L spouses that would serve as evidence of work authorization.

On January 31, 2022, USCIS and U.S. Customs and Border Protection (CBP) began implementing new Form I-94 designations for E and L spouses. The new designation includes an “S” next to the E or L2 class of admission (COA). An unexpired Form I-94 with the new designation (E-1S, E-2S, E-3S, and L-2S) serves as evidence of work authorization under List C of Form I-9.

Details

USCIS announced that it would update the USCIS Policy Manual with the above changes to address the acceptable documentation that certain E and L nonimmigrant spouses may use to evidence work authorization.

USCIS also announced that on or around April 1, 2022, the agency would begin mailing notices to E or L spouses with unexpired Form I-94s issued by USCIS before the new spousal designations went into effect on January 31, 2022. The notice, along with an unexpired Form I-94 issued by USCIS showing E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status will serve as evidence of employment authorization. USCIS will update its policy manual to add this new document combination as evidence of employment authorization for E and L spouses under List C of Form I-9.

USCIS noted that qualifying E or L spouses who do not receive a notice by mail by April 30, 2022, may email USCIS to request the notice.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.