The United States Citizenship and Immigration Service (USCIS) has recently changed its policy in regards to work authorization for L-2, H-4, and E dependent visa spouses. Specifically, the USCIS has changed its policy manual to state that E-1, E-2, E-3, and L-2 dependent spouses are considered by the USCIS to be authorized for employment incident to status 10 USCIS PM B.2.

However, this change did not mean that dependent visa spouses could immediately go out and obtain a job. The dependent spouses that were affected by the policy change were left without the documentation to use for Form I-9, Employment Eligibility Verification, to prove their right to work.

The USCIS Policy Manual indicates that these dependent spouses cannot use Form I-94s as a valid List C document when they are completing Form I-9 unless the Form I-94 designates that the L-2 and E dependent visa holders are spouses. The USCIS and the U.S. Customs and Border Patrol (CBP) worked together on a Form I-94 that could be used for this purpose, which has recently become available as of January 31, 2022, although not at all CBP sites. The form has an “L-2S” designation for spouses of L-1 visa holders as well as designations for the spouses of E visa holders. The CBP is also updating Form I-94 for E or L-2 dependent spouses that entered the United States on or after the 31st of January 2022.

It’s possible that some L-2 and E-dependent spouses may choose to travel somewhere outside of the United States and then re-enter the U.S. in order to obtain an entry record that has the designation they need for work authorization. Although these spouses may want to be careful and check their I-94 designation upon re-entry since not all CBP sites are issuing I-94s with the designation necessary for work authorization. If a returning spouse does not receive the necessary designation, they should immediately contact the deferred inspection site to deal with the problem.

These forms will likely soon be available at all CBP sites. Additionally, the USCIS will probably soon update the I-9 Employer Handbook in order to allow E and L-2 dependent spouses that have a valid I-94 Form with the appropriate designation to use the form for work authorization purposes.

For those employers that do hire L-2 and E-dependent spouses, it is important to remember that filling out Form I-9 can be complicated and confusing. The most effective way to ensure your company is in compliance is to use an electronic Form I-9 management system. This can allow for easy paperless management and storage that can ensure your documents are ready for inspection at a moment’s notice.

Learn more about automating your employment eligibility verification and ensuring compliance with I-9 Compliance.