Customs and Border Protection (CBP) Begins Issuing Modified Forms I-94

The modification is the result of a 2021 court settlement requiring the Department of Homeland Security (DHS) to recognize E and L dependent spouses of visa holders as "employment authorized incident to status."

On November 12, 2021, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum rejecting a 2002 memorandum which required dependent spouses of E and L visa holders to apply for an Employment Authorization Document (EAD, Form I-766). Instead, USCIS has opted to read the applicable regulations as declaring such individuals "employment authorized incident to status." This policy change was in response to a class action suit filed by dependent spouses of E and L visa holders whose employment authorizations had lapsed due to USCIS delays in processing EAD renewal applications.

The settlement agreement required USCIS to implement a modified Form I-94 within 120 days. While neither USCIS nor CBP has issued a formal press release or guidance on the topic, agency sources disclosed that an internal memorandum was issued stating that the new policy would take effect on January 31, 2022. However, Certiphi Screening has seen anecdotal reporting indicating that that the modified Form I-94 is not being issued uniformly across all ports of entry.

Certiphi Screening has received and reviewed multiple modified Forms I-94 issued after January 31 reflecting this modification and considers them proof of employment authorization on the Form I-9 pursuant to USCIS guidance.

USCIS has stated that it will work to issue new Forms I-94 for dependent spouses of E and L visa holders who are currently in the United States.

Modified Forms I-94 containing the following admission codes are valid for Form I-9 purposes:

  • E1S
  • E2S
  • E3S
  • L2S

Certiphi Screening will alert clients again once CBP issues formal guidance on the topic. Please feel free to contact your account management team with any questions or concerns.

Posted: February 8, 2022

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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