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General / Feb 23, 2022

By Cora-Ann V. Pestaina

On January 31, 2022, U.S. Customs and Border Protection (CBP), implemented new codes of admission for derivative beneficiaries of principal beneficiaries who hold L-1 or E status. This represents an important change because it means that the U.S. Department of Homeland Security is finally recognizing that E and L derivative beneficiary spouses have automatic work authorization incident to status (i.e., granted with the underlying immigration status) and no longer need to obtain an employment authorization document (EAD) before they can work in the U.S.

As background, these derivative spouses needed to first enter the U.S. in E-1, E-2, E-3 or L-2 status and then file a Form I-765, Application for Employment Authorization, to obtain an EAD before they would be able to accept employment in the U.S. With the application processing times becoming longer and longer, stretching past 6 months, in many cases these individuals would end up losing any existing job offer before they were able to secure the EAD.

A historic settlement in Shergill, et al. v. Mayorkas provided structural changes for these dependents and led U.S. Citizenship and Immigration Services (USCIS) to publish a new Policy Alert on  November 12, 2021 which provided, among other things, that E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD. The Policy Alert included a footnote cautioning that “until such time as USCIS can implement changes to the I-94 to distinguish E and L spouses from E and L children, E and L spouses would still need to rely upon an EAD as evidence of employment authorization.”

As of January 31, 2022, L or E dependents can no longer be admitted by that category alone. Instead, one of the following codes of admission must be listed on their Form I-94.

E-1S – Spouse of E-1

E-1Y – Child of E-1

E-2S – Spouse of E-2

E-2Y – Child of E-2

E-3S – Spouse of E-3

E-3Y – Child of E-3

L-2S – Spouse of L-1A or B

L-2Y – Child of L-1A or B

Importantly, this change is a designation applicable only to new arrivals. CBP will not amend an already issued Form I-94 as amendments are reserved for correction of mistakes. A derivative spouse who is already in the U.S. and wishes to have one of the new codes reflected on their Form I-94 will be required to depart the U.S. and re-enter. While it is not a requirement, CBP’s Systems Enforcement Analysis and Review (SEAR) recommended that E and L spouses travel with proof of the marriage relationship, to assure that the correct status is issued on the system.

But, while it’s great that E and L-1 dependent beneficiaries will be granted work authorization incident to status, that status has an expiration date. If they do not wish to leave the U.S. and would rather apply for an extension of stay in the U.S., that application can take well over 6 months to be processed. While their spouses, the principal beneficiaries, can take advantage of premium processing for their L-1 or E petitions, premium processing is not available for the Form I-539, Application to Extend/Change Nonimmigrant Status. The E or L dependent spouse would not be authorized to work until their application for extension of stay is approved by USCIS. Of course, the option to depart the U.S. and return would remain but whether that would decrease the dependent spouse’s wait time would depend on how easy it is to obtain a visa appointment at a Consulate/Embassy abroad. There used to be a time when USCIS would, as a courtesy, approve applications for extensions of stay on Form I-539 as soon the principal beneficiaries’ petitions were approved. To prevent any gap in work authorization, USCIS can simply reinstate this courtesy premium processing for the Form I-539 applications of dependents. Otherwise, despite the excitement of the new admission codes, dependent spouses may continue to run into issues maintaining their ability to work in the U.S.