As of January 31, 2022, spouses entering the United States in L-2 or E status may be able to obtain work authorization at the border by asking Customs and Border Protection (CBP) to give them a “spousal” designation in their I-94 record. Because USCIS has not issued “official” guidance on this yet, requesting the designation may or may not be successful.
In response to extraordinarily long delays in obtaining employment authorization documents (EADs), USCIS announced some policy changes in November, including new guidance clarifying that L-2 and certain E spouses will no longer need EADs to work. L-2 and E spouses will be able to work incident to status. There was a condition precedent, however. Eligible spouses could not work incident to status until they obtained an I-94, Arrival/Departure Record, annotated to show that the bearer is an L-2 or E spouse so the I-94 could be used for I-9 Employment Eligibility Verification form purposes.
Reportedly, the guidance has been issued internally and, it seems, some CBP officers are annotating I-94 records while others do not even acknowledge having received any information about the change.
Given the current confusion, any spouses entering the United States in L-2 or E status who wish to work may want to ask for the annotation by requesting CBP admission as an L-2 or E spouse and receiving that “spousal” designation in their I-94 record. It is also advisable to travel with supporting documentation proving eligibility for the annotation on the I-9, such as a copy of the principal’s L or E visa (unless travelling together), marriage certificate, and a copy of the new guidance. This may or may not work, but it may be worth trying for those with scheduled travel, until the official policy is released.
If you have questions about the new policy, how and at which ports of entry it might currently apply, Jackson Lewis attorneys are available to assist.