In an incredibly exciting release from USCIS on November 12 titled “Employment Authorization for Certain H-4, E, and L Non-immigrant Dependent Spouses” it appears that E3D (dependents of those on E3 visas) are now going to be allowed to work much more easily in the US.
One particularly difficult element of moving to the US from Australia on an E3 visa with a family is the fact that spouses traditionally have not been allowed to start working until they receive an EAD (work authorization). In addition to this, once the E3D is renewed, there's another delay in getting a renewed EAD which means that work has to be stopped and for many, this makes work difficult or impossible to find.
In the release from USCIS on November 12, however, it appears that US Citizenship and Immigration Services (USCIS) has changed this policy to make it much easier for those on E3Ds to start work.
You can read the full policy alert here and updates have been made in the “Family of E-3 Nonimmigrant Workers” section of the E-3 information page on the USCIS website.
Contained in this article about E3S automatic work authorization
- What has changed for E3Ds already in the US who have expiring EADs?
- What has changed for E3Ds who have not yet received or applied for an EAD?
- How to have the new E3S and E3Y status applied when you arrive to the United States
- Getting social security with a new E3S or L2S visa
- What has changed for those dependents of L1 visas (L2) and H-4 visa holders?
- Highlights from this policy update for E3Ds, L2s, and H-4s
What has changed for E3Ds already in the US who have expiring EADs?
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address automatic extension of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. USCIS is also rescinding the 2002 Legacy Immigration and Naturalization Service memorandum entitled, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition” (2002 INS memorandum).
In short, the update states that:
USCIS is updating its interpretation and implementation of [existing policies] to provide that certain H-4, E, or L dependent spouses [e.g. E3S] will qualify for the automatic extension provided under this regulatory provision if certain conditions are met.
In order to show that you have work status, you will no longer have to wait for a renewed EAD. Instead you must show that you have a valid I-94, and you have filed for your extended EAD in a timely manner (and have received an I-797C notice of action receipt), and can show your expired existing card. This combination of documents “may be acceptable to evidence unexpired employment authorization for Employment Eligibility Verification (Form I-9) purposes”.
The new and updated summary from E-3 Specialty Occupation Workers from Australia shows that certain E-3 dependent spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet certain conditions:
- They timely filed a renewal Form I-765, Application for Employment Authorization, based on the same E-3 nonimmigrant status;
- They have an unexpired Form I-94 showing their status as an E-2 nonimmigrant.
The automatic EAD extension will continue until whichever comes first:
- The end date on the dependent spouse’s Form I-94 showing valid E-3 nonimmigrant status, as applicable;
- The date we approve or deny their application to renew the EAD; or
- 180 days from the “Card Expires” date on the front of the EAD.
Eligible E-3 dependent spouses may present the following evidence of the automatic EAD extension to employers for purposes of Form I-9, Employment Eligibility Verification:
- Form I-94 indicating the unexpired E-1 nonimmigrant status;
- Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17)”; and
The expired EAD issued under the same category, Category A17.
What has changed for E3Ds who have not yet received or applied for an EAD?
This is the particularly exciting update in this policy change alert.
In addition, USCIS is also clarifying that it will consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status
This is saying that those who successfully receive an E3D will automatically be given work privileges (without the need for an EAD at all).
No more waiting for an EAD to start work! This is very exciting for hundreds and thousands of dependants all across the United States.
Traditionally, E and L spouses have been required to request employment authorization by filing an Application for Employment Authorization (Form I- 765) and receive an EAD before beginning employment but this updated policy changes that.
DHS will immediately take steps to modify Forms I-94 evidencing nonimmigrant status issued to E and L dependents so that E and L dependent spouses can be distinguished from E and L dependent children on the face of the document. Once these changes are made, the revised Form I-94 containing a notation indicating that the bearer is an E or L dependent spouse will be acceptable as evidence of employment authorization under List C of Form I-9
This all means to say that they will make sure your E3D documents show that you are allowed to work (as children are not allowed – so they need to have different information on their papers).
The new and updated summary from E-3 Specialty Occupation Workers from Australia shows that certain E-3 dependent spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet certain conditions.
How to have the new E3S and E3Y status applied when you arrive to the United States
With these updates now in place, it's important that you take full advantage of them.
When you arrive at the airport as an E3D, be sure to request an E3S if you are a spouse, or an E3Y for your dependents. We're hearing of cases where officers were unaware of the new E3 types and they therefore didn't use them.
If you are admitted to the US with just E3D (and not E3S) your automatic work rights will not apply.
Updated (3/18/2022): Another step forward with E3D and L2 spousal visas and the ability to get automatic work authorization! If you entered before Jan 30 and the issuance of the E3S status and have adjusted status with an I-539, you will receive a letter from USCIS which you can use as work authorization! You're no longer required to leave the country and return to get the new status.
USCIS just issued updated guidance which has explained that
if you are an E or L spouse age 21 or over who has an unexpired Form I-94 that USCIS issued before Jan. 30, 2022, we will mail you a notice beginning on or about April 1, 2022. This notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization”
If you don't get this letter:
And if you haven't received it?
If you are an E or L spouse and under 21, or if you have not received your notice by April 30, email [email protected] to request a notice.”
This is however just for “individuals identified as qualifying spouses based on a Form I-539 approved by USCIS” as opposed to everyone who entered before January 30.
And just to recap:
As of Jan. 30, 2022, USCIS and CBP began issuing Forms I-94 with the following new COA 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 is acceptable as evidence of employment authorization for spouses under List C of Form I-9.
Getting social security with a new E3S or L2S visa
After a frustrating few weeks with the Social Security Administration (SSA) for many entering on an E3S visa, there has been progress! The SSA will now recognize that E and L spouses are work authorized incident to status by May 6, 2022.
on June 3, 2022 the Social Security Administration update their policy for E3S visas and automatic work authorization (and getting Social Security Numbers – SSNs)!
Instead of rumors, and private memos, we now have official policy that instructs SSA officers how to deal with E3 Dependents (E3S, formerly E3D) and the fact that they now get automatic work authorization incident to status.
E3S has been moved to the category “Aliens employment-authorized without specific DHS authorization” alongside E3!
As per RM 10211.420 Employment Authorization for Non-immigrants (https://secure.ssa.gov/poms.Nsf/lnx/0110211420):
“Effective November 2021, USCIS granted E-1, E-2, E-3, L-1, and L-2 spouses work authorization incident to status. I-94s issued prior to November 2021 may reflect the COAs of E-1, E-2, E-3, L-1, and L-2 and those spouses no longer must present a marriage document to establish work authorization as spouses of E-1, E-2 E-3, L-1, and L-2 principles. If the supplied I-94 was issued prior to November 2021 then USCIS will not issue a new I-94.”
If you are still having issues with the social security office issuing your SSN (or instructing you that you need an EAD) print out the above page and take that with you. This is their official policy guide and there relevant section is:
G. Policy for employment authorization by Class of Admission (COA) – 1. Aliens employment-authorized without specific DHS authorization.
Inside this section you will see that E3S is now listed next to E-3.
What has changed for those dependents of L1 visas (L2) and H-4 visa holders?
From my initial reading, these changes apply to these visa statuses as well.
Highlights from this policy update for E3Ds, L2s, and H-4s
- Provides that certain H-4, E, or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly filed an application to renew their H-4, E, or L-based EAD before it expires, and they have an unexpired Form I-94 showing their status as an H-4, E, or L nonimmigrant, as applicable.
- Provides that the automatic extension of the EAD will continue until the earlier of: the end date on Form I-94 showing valid status, the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the previous EAD.
- Provides that the following combination of documents evidence the automatic extension of the previous EAD, and are acceptable to present to employers for Form I-9 purposes: Form I-94 indicating the unexpired nonimmigrant status (H-4, E, or L), Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and the facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).
- Provides that E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to request employment authorization by filing Form I-765 but may continue to file Form I-765 if they choose to receive an EAD.4
Hi Josh,
Incredibly helpful article! Quick (though perhaps silly) question – how would you know if you’ve been stamped with the automatic work authorization? I arrived on an E3D a few days ago but am having trouble figuring out whether I need to apply for an EAD now or not.
Hi Noe, you should check your I-94 here: https://i94.cbp.dhs.gov/I94/#/home
Check what your status says, as you want it to say E-3DS I believe (S is for Spouse).
Hey Josh, Do you know are have any idea if the existing i-94 also gets updated as part of this new rule. Or the people who are already in the US on existing E3D will have to depart and get a new i-94 at the border to get the updated E3Ds status on their i-94.
My understanding is it will not update your existing status. You’d need to leave and re-enter.
I have a same question. I have been in US for two years and already applied for extension. Will i94 under i797 have E3DS or just E3D status?
Good question, I don’t know, sorry!
Hi all! Did anyone else hear that the changes to E3D are being implemented by march 12? If so, can anyone confirm that this is going to happen and how were are expected to know what to do?
The March 12 date is based on the 120 days USCIS suggested it would take to update the I-94. So yep that’s the expectation. They don’t really say much in between proposing it and implementing it so there’s nothing more to know just yet, but I will update the site as soon as we hear anything else.
Following this! I arrived in the US on an E3D on the 6th of January and just got turned away from the social security office because they claimed I’m not work authorised.
I’m assuming we’re all still waiting for the I94 changes to take effect and to find out what exactly they’ll look like.
My I94 does state E3D on it, but I’m guessing there is something further coming that indicates work authorisation status.
That’s correct, Matt. E-3D can be a child as well, who would not have work auth. So it needs to have a different notation that we are still waiting on!
Thank you so much for clearing this up, I was running on the assumption that E3D was specifically a spouse. Fingers crossed it’s only another 6 week wait then, at least that’s certainly less than the 12 month wait applying for an EAD.
Hey Josh,
Hope you are doing well. I just got my E3 approved (not one single question asked during interview) however I am awaiting visa interview for my wife for E3D, can you please help me understand what documents for she need to carry for the visa interview. There isn’t much information for E3D visa interview anywhere, hope you can help me out.
Keep up the noble work you are doing.
Cheers,
Satya Dharba
Hi Satya,
Wonderful! So there’s some information here: https://www.ustraveldocs.com/au/au-niv-typee3.asp#dependants but basically you need:
1. DS-160 nonimmigrant visa application confirmation page;
2. Visa interview appointment confirmation page;
3. Proof of payment of visa fees;
4. A passport-style photograph that meets DOS‘s nonimmigrant visa photo requirements;
5. Passport valid for at least six months beyond the E-3 employee’s authorization end date;
6. Evidence of relationship to the E-3 employee:
a. Marriage certificate for spouse;
b. Birth certificate for each child;
7. Evidence of the E-3 employee’s status (copies of Form I-94, visa, approval notice, offer/support letter, etc.); and
8. Any other documents required by the specific U.S. embassy or consulate (the link above and when you get the appointment, you should be sent a list).
Hey Josh, My husband is the primary on E3 and I am on E3D. My Husbands Visa is approved. My I94 is expiring at the end of January. I would like to know if I am still eligible or what are the next steps. Thanks in advance!
Hi Kavitha, at this point I would definitely speak to an immigration attorney to make sure. It’s all a bit gray for me to say for sure sorry!
I am in E3D. My EAD card and I94 expired on 12/31/21. I have applied for my EAD extension and extension of stay I797C. Both the applications are still pending. However, my spouse (primary applicant) E3 extension is approved and has valid I94. As per the auto extension of E3D extension. Will I be able to work?
Josh – I know of few friends (mainly having H4 visa) who were initially excited about the above new policy changes, but, are now still very disappointed that its really not helpful. The main challenge many are facing is the fact that their I-94’s also have the same date of expiry as their H4 and hence its very rare that they can have a situation that their I-94 date is in the future and hence enabling them to get benefit from the 180 day extension rule. Is there any way we can get our I-94 date updated if our E3D application is still not approved? The processing time for the E3D is still pretty long and delayed. With COVID situation and embassies not being open in most countries yet, travelling abroad has become a major challenge.
But yes, I am really hoping that the new rule that E3D visa holders need not have to apply for EAD, is implemented soon.
Any pointers on how to get the I-94 date updated during the current situation?
As an e3 dependant holder, can I start working if the employer accepts my I94 + marriage certificate? Is it against the law?
It is against the law, yes. You need an EAD at this stage to start work. Your I-94 + Marriage Certificate is not work authorization.
Hi Josh,
How would we know DHS have modified the I-94 form? Is there usually an announcement by DHS or USCIS on their website confirming the changes have been made?
Thanks!
Hi Tracey, I’m not sure just yet but am investigating!
Thank you! I am still a little bit confused.
Would this mean new E3Ds can start working when they arrive in the U.S. now? Or they will need to wait for the implementation to finish, I heard that the implementation may take up to 6 months?
They need to wait for the implmentation!
Hi Josh,
Any idea when will this be implemented ?
Sadly not yet, Sahil!
Hey Josh,
Awesome news, when will the policy start officially? I couldn’t find out the exact date on the website. Thank you!
Hi Kay, this has officially started right now, but it takes some time to implement and we don’t have the exact timeline in mind.
“DHS is taking steps to modify Forms I-94 that show nonimmigrant status issued to E dependents so that E dependent spouses can be distinguished from E dependent children on the face of the document. Once these changes are made, the revised Form I-94 containing a notation indicating that the bearer is an E dependent spouse will be acceptable as evidence of employment authorization under List C of Form I-9.” – https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-3-specialty-occupation-workers-from-australia
Hi Josh, how do we track the status of the I-94 form changes? Do we have any estimates on when these changes will be made by DHS?
Thanks,
I’m keeping an ear out for changes and will absolutely send them to my newsletter and update the site!
Thanks, just signed up!
This article suggests that the I-94 changes have to be implemented by March 10th: [monda /unitedstates/general-immigration/1132084/updated-settlement-changes-uscis-recognition-of-work-authorization-for-h-4-and-l-2-eads]?
Is there any validity in that from your understanding?
Yep that’s my understanding of how the rules are meant to implemented in situations like this. They have 120 days.