USCIS Publishes New Form I-9 Guidance for Employees with E and L Nonimmigrant Status
/On June 29, 2022, USCIS updated its guidelines for how E and L nonimmigrants should fill the I-9 Form.
For Dependent Spouses of E-1, E-2, or E-3 Workers
In Section 1, employees with Forms I-94 with a COA of E-1S, E-2S, or E-3S should check "An alien authorized to work" and enter the Form I-94 end date on the expiration date line in Section 1. For Section 2, the employee's Form I-94 with E-1S, E-2S, or E-3S nonimmigrant status is acceptable evidence of employment authorization as a List C #7 document. They must also present a List B identity document.
If the Form I-94 was issued before Jan. 30, 2022, and shows E-1, E-2, E-3, E-3D, or E-3R COA, the employee's Form I-94 in combination with the Form I-797A, Notice of Action, indicating that USCIS identified the individual as a dependent spouse in one of the nonimmigrant classifications (E-1, E-2, E-3, E-3D, or E-3R) whose status renders the individual employment authorized incident to status, is acceptable as a List C #7 document. USCIS sent these Forms I-797A, Notices of Action, in 2022 to dependent spouses whose Forms I-94 were issued before Jan. 30, 2022.
If the employee presents List B and C documents such as a driver's license for List B and a Form I-94 admission record combined with the Form I-797A identifying the individual as a dependent spouse whose status of E-1, E-2, E-3, E-3D, or E-3R indicates employment authorization incident status as described above, for List C, you should complete Section 2 as follows:
Enter the employee's List B document information;
Under List C, enter "Form I-94" as the document title;
Enter the Form I-94 admission number as the document number;
Enter the Form I-94 end date in the Expiration Date field; and
In the Additional Information field, enter "Form I-797A" and its receipt number.
If the employee presents, in combination, a Form I-797A described above and Form I-94 to complete Section 3, you should:
Enter "Form I-94" as the document title;
Provide the Form I-94 admission number as the document number;
Enter the Form I-94 end date in the Expiration Date field; and
In the Additional Information field, enter "Form I-797A" and its receipt number.
E nonimmigrant dependent spouses are employment authorized incident to their status. Such dependent spouses may choose to apply for a Form I-766, Employment Authorization Document (EAD) and present it as a List A document for Form I-9 completion but are not required to do so. Under certain circumstances EADs may be automatically extended. See Section 4.4 of the M-274 for more information.
For Dependent Spouses of L-1A and L-1B Workers
In Section 1, employees with Forms I-94 with COAs of L-2S should check "An alien authorized to work" and enter the Form I-94 end date on the expiration date line in Section 1. For Section 2, the employee's Form I-94 with L-2S nonimmigrant status is acceptable evidence of employment authorization as a List C #7 document. They must also present a List B identity document.
If the Form I-94 was issued before Jan. 30, 2022, and shows a COA of L-2, the employee may present the Form I-94 in combination with the Form I-797A, Notice of Action, indicating that USCIS identified the individual as an L-2 dependent spouse whose status renders the individual employment authorized incident to status, is acceptable as a List C #7 document. USCIS sent these Forms I-797A, Notices of Action, in 2022 to dependent spouses whose Forms I-94 were issued before Jan. 30, 2022.
If the employee presents List B and C documents such as a driver's license for List B and a Form I-94 combined with the Form I-797A identifying the individual as an L-2 dependent spouse whose status indicates employment authorization incident to status as described above, for List C, you should complete Section 2 as follows:
Enter the employee's List B document information;
Under List C, enter "Form I-94" as the document title;
Enter the Form I-94 number as the document number;
Enter the Form I-94 end date in the Expiration Date field; and
In the Additional Information field, enter "Form I-797A" and its receipt number.
If the employee presents, in combination, a Form I-797A described above and Form I-94 to complete Section 3, you should:
Enter "Form I-94" as the document title;
Provide the Form I-94 admission number as the document number;
Enter the Form I-94 end date in the Expiration Date field; and
In the Additional Information field, enter "Form I-797A" and its receipt number.
L nonimmigrant dependent spouses are employment authorized incident to their status. Such dependent spouses may choose to apply for a Form I-766, Employment Authorization Document (EAD) and present it as a List A document for Form I-9 completion but are not required to do so. Under certain circumstances EADs may be automatically extended. See Section 4.4 of the M-274 for more information.
