Business Immigration Insights

In the newest sequel to the Shergill v. Mayorkas settlement, US Citizenship and Immigration Services (USCIS) has now updated its Policy Manual to address documents that E and L nonimmigrant spouses may show their employers to prove their work eligibility.

As we reported in USCIS Settles Major Federal Lawsuit: Good News for E, H and L Spouses, USCIS announced in November 2021 that it would recognize the existing regulatory reality that E and L spouses are authorized to work solely based on their valid E or L nonimmigrant status.

As we further reported in CBP Now Issuing Work-Authorized I-94s for L and E Spouses, USCIS and US Customs and Border Patrol (CBP) began issuing Form I-94 Admission Records in February 2022 with new codes designating E and L spouses, as follows:  E-1S, E-2S, E-3S, L-2S.

USCIS is now updating its Policy Manual to:

1. Confirm that E/L spouses are automatically authorized to work for any employer based on their status – see Volume 10, Part A, Chapter 2.A. - Eligibility Requirements; and
2. Verify that employers of E/L spouses may accept a valid I-94 with the “S” spouse designation as evidence of employment authorization under List C of Form I-9 – see Volume 10, Part B, Chapter 2.A. - Specific Categories.

In addition, since spouses whose I-539 applications were approved prior to January 30, 2022, did not receive the new “S”-annotated I-94s, USCIS has announced that, about April 1, 2022, it will begin mailing notices to those spouses stating that they are employment authorized “incident to status.”  Spouses may present these notices, combined with their existing Forms I-94 without the “S” designation, to their employers to show that they are eligible to work.  Spouses who have not received a notice by April 30 may email E-L-married-U21@uscis.dhs.gov to request one.  Only spouses who received I-539 approvals dated before January 30, 2022, may request the notice.

Spouses who need to prove work eligibility before receiving either an “S”-annotated I-94 or the notice being mailed by USCIS may wish to carry printed copies of the updated sections of the Policy Manual to show their employers, who may not be familiar with these very recent changes.