Following the Shergill, et al. v. Mayorkas settlement, U.S. Customs & Border Protection (CBP) started issuing I-94 forms on January 30, 2022, with new Class of Admission (COA) codes for certain E and L spouses as evidence of their employment authorization incident to status. The term incident to status means that employment authorization is granted with the underlying immigration status (instead of having to first apply and be approved for work authorization in order to accept employment in the United States). The new COA designations were intended to distinguish E and L spouses from E and L children who are not employment authorized.
As of January 30, 2022, U.S. Citizenship & Immigration Services (USCIS) also began issuing I-94 forms with the new COA codes for E and L spouses, following its announcement on November 12, 2021, that the agency will consider certain E and L spouses to be employment authorized incident to status.
USCIS has now recently issued a Policy Alert and updated its guidance in the Policy Manual that confirms:
- As of January 30, 2022, USCIS and CBP began issuing Forms I-94 with the following new Class of Admission 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 (E-1S, E-2S, E-3S, and L-2S) is acceptable as evidence of employment authorization for spouses under List C of Form I-9 (#7 Employment Authorization Document issued by the Department of Homeland Security).
- For certain E and L spouses with a Form I-94 issued by USCIS before January 30, 2022 USCIS will mail a notice beginning on or about April 1, 2022 that together with the unexpired Form I-94 reflecting E-1, E-2, E-3D, E-3R, or L-2 status may also serve as evidence of employment authorization under List C of Form I-9.
- Such notices, however, will only be issued to individuals identified as qualifying spouses based on a Form I-539 approved by USCIS (not for I-94 forms issued by CBP).
- USCIS has provided a specific email address for notices not received by April 30, 2022.