E-2 L-2 EAD

In 2002, Congress modified the existing immigration laws so that L and E dependent spouse visa holders could work in the United States. However, obtaining the employment authorization documents (EAD) was complex, lengthy, and costly. USCIS’ new guidance addresses the issues making it easier to get EADs for E-2 and L-2 visa holders.

E-2 and L-2 EAD Background

USCIS required the spouses of these temporary workers to go through a lengthy process of getting employment authorization first. Due to long adjudication times, it would take upwards of a year before these spouses could get approval from the agency. As a result, these families would be impacted financially due to the gaps in permissible work.

In reaction to this compounded issue, a major class-action lawsuit was filed in the Western District of Washington against USCIS. Shergill v. Mayorkas was settled in November of 2021. As a result, USCIS amended the policies to grant E-2 and L-2 spouses annotated arrival documents (I-94 records) to act as evidence for their EADs.

Essentially, E-2 and L-2 visa holders would be granted EADs upon admittance into the U.S. by Customs and Border Protection (CBP), thereby eliminating the need to go through a lengthy process. Moreover, USCIS extended the validity of the work authorization by 180 days to reduce the likelihood of employment gaps while USCIS is processing new requests.

New Guidance from USCIS

Starting January 30, 2022, USCIS and CBP began issuing I-94 Forms with new Class of admission codes for certain E and L spouses. In addition, on March 18, 2022, USCIS issued a policy guidance update stating that they would be sending notices to E and L visa holders (over 21 years old) with unexpired Form I-94 issued before January 30,  2022, to serve as evidence of employment authorization and legal status. Therefore, based on the new practice, an EAD will not be required for these eligible individuals.

Since the November 2021 announcement, the Department of Homeland Security added new Class of Admission (COA) codes to distinguish between E and L spouses and children. As of Jan. 30, 2022, USCIS and CBP began issuing Forms I-94 with the following new COA codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9.

What’s Next?

Are you the spouse of an E or L visa holder and over 21 years old with an unexpired Form I-94 (issued before January 30,  2022)? If so, USCIS will mail you a notice around April 1, 2022, and you can use this notice along with your unexpired Form I-94 (showing E-1, E-2, E-3, #-3D, E-3R, or L-2 status) as evidence of your work authorization. If you fit the aforementioned criteria and have not received your notice by April 30, you should email [email protected]

Note: USCIS will only send notices to individuals identified as qualifying spouses based on a Form I-539 approved by USCIS. Individuals who received Form I-94 from CBP should visit www.cbp.gov.

Stay tuned regarding guidance on how to complete the I-9 verification with the new COA admission codes.