Quick Summary: This update explains changes announced in a May 12, 2022 practice alert about work authorization documents for certain L-2 and E-2 spouses. The key issue is whether an I-94 record or USCIS approval notice clearly identifies someone as a spouse. That identification can be important when documenting eligibility to work in the United States and when completing Form I-9.

The rules described here depend on a person’s visa category, age at entry, date of entry, and the documents they have received. If this update may affect you, it is important to review your own documents carefully rather than assuming the same answer applies to everyone.

What This Update Was About

In 2022, U.S. Customs and Border Protection (CBP) confirmed that it had updated certain electronic I-94 records for L-2 spouses. The update added the letter “S” to the immigration status shown on the I-94 record.

In plain language, the “S” is intended to show that the person is an L-2 spouse, rather than an L-2 child. That distinction matters because the practice alert connects this spouse designation with documentation of work authorization.

The alert also discussed E-2 spouses. However, the process described for E-2 spouses was different because CBP could not use the same broad electronic update for their I-94 records.

L-2 Spouses Age 22 and Older

According to the practice alert, CBP proactively updated electronic I-94 records for L-2 spouses who were age 22 or older and who had entered the United States before January 31, 2022. Those records were updated to add the “S” designation.

The alert further states that people entering the United States on or after January 31, 2022 were receiving the “S” designation at the time they entered the country.

This means that an L-2 spouse in this group may have an I-94 record that shows an L-2S status. The alert does not say that every person should assume their record was updated correctly. A review of the actual I-94 record remains important, especially when the document will be used for employment-related purposes.

L-2 Spouses Who Were 18 Through 21 at Entry

The practice alert identifies a separate group: foreign nationals who were age 18 through 21 when they entered the United States in L-2 status. CBP did not add the “S” designation to these I-94 records through the electronic update described above.

The stated reason was that CBP could not determine from the available information whether a person in this age group was an L-2 dependent spouse or an L-2 dependent child. The alert explains that this group could not have the record updated through Deferred Inspection.

For an affected L-2 spouse, the alert describes two possible times for the “S” designation to be added: on the person’s next entry to the United States, after presenting proof of the spousal relationship, or through the next filing with U.S. Citizenship and Immigration Services (USCIS).

Because the alert focuses on the person’s age at the time of entry, the date and circumstances of entry can be important. This is one reason an individual review may be needed before relying on an I-94 record for employment documentation.

What the Update Said About E-2 Spouses

For E-2 spouses, CBP was not able to make the same electronic I-94 adjustment. The practice alert explains that CBP could not distinguish an E-2 principal from an E-2 dependent spouse in a way that allowed for the broad update.

As a result, an E-2 spouse who needs the “S” designation would need to use the approach described for the affected L-2 spouses: obtain the designation at a later entry to the United States by presenting evidence of the spousal relationship, or address it through a future USCIS filing.

The alert does not provide additional details about which option will be appropriate in every situation. The right path can depend on the person’s documents and immigration history.

USCIS Approval Notices

The practice alert also states that USCIS began issuing I-797 approval notices for L-2 and E-2 spouses that specifically say the notice may be used to document work authorization and to complete Form I-9.

Form I-9 is the employment eligibility verification form used by employers in the United States. The wording on the approval notice is important because it gives employers and employees a document that the alert says may be used for this purpose.

For employees, this can help clarify which immigration documents are relevant when starting a job or updating employment records. For employers and HR professionals, it highlights the importance of reviewing the specific language on the employee’s approval notice instead of relying only on a general understanding of the visa category.

Practical Steps to Consider

Based on the practice alert, the first practical step is to identify whether the person is in L-2 or E-2 status. Next, review the person’s I-94 record and any I-797 approval notice from USCIS.

For an L-2 spouse, consider the date of the person’s entry to the United States and the person’s age at that entry. For an E-2 spouse, recognize that the electronic I-94 update described in the alert was not available in the same way.

It is also important to keep documents that show the spousal relationship available if they may be needed at a future entry to the United States. Employers should avoid making assumptions based solely on a visa label and should review the documents presented for Form I-9 purposes.

FAQ

What does the “S” mean on an L-2 or E-2 record?

In the practice alert, the “S” identifies the person as a spouse. The alert links this spouse designation to documentation of work authorization.

Were all L-2 I-94 records updated?

No. The alert says CBP updated certain records for L-2 spouses age 22 or older who entered before January 31, 2022. It did not add the designation through that process for people who were age 18 through 21 at entry.

Can an L-2 spouse age 18 through 21 use Deferred Inspection to add the “S”?

According to the alert, no. It states that this subset of I-94 records could not be updated through Deferred Inspection.

Why were E-2 spouses treated differently?

The alert says CBP could not distinguish between an E-2 principal and an E-2 dependent spouse for purposes of making the electronic adjustment.

Can an I-797 approval notice help with Form I-9?

The alert states that USCIS was issuing certain I-797 approval notices for L-2 and E-2 spouses that specifically say they may be used to document work authorization and complete Form I-9.

If this update affects a pending or planned immigration or employment matter, contact Ventresca & Ventresca LLP. Our Wexford, PA immigration law team can help you review the documents and circumstances involved in your situation.