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
I got my E-3D in Feb and entered with E3D status in March. I recently came to know about this change and contacted the deferred inspection office and got it updated to E3S in I-94 . I went to obtain my SSN today, the agent there could not submit the application as they still have E3D in their system which requires an EAD and they cannot proceed without that . So not sure when this change will be reflected in the SSN systems. This is really frustrating.
Can we still work without an SSN on E3S?
Hi DMRI,
Does not look like it. I got the below from an employer.
Looks like they still need an EAD for an E3 spouse.
If the listed category is E-3, the individual may be authorized to work, but only either (1) for the employer that filed the petition or otherwise sponsored the employee’s nonimmigrant status/visa; or (2) with additional or different proof of employment authorization, such as an Employment Authorization Card (I-766) or a List C document. The determination hinges on whether the person presenting the document is the “principal” alien or is instead a spouse, child, or other dependent. The principal alien would be authorized to work for the employer that filed the petition or sponsored the nonimmigrant status/visa. The spouse, child, or dependent would be required to submit different or additional proof of employment authorization.
SSA still not issuing SSN without EAD.
Just back from the Social Security Office in Mesa, AZ. I have a new E3 issued in London (Mar 2022), spouse on E3S (was E3D but we had it changed by calling deferred inspection unit – 718 553 3683).
The social security office has no information about the changes and would not accept the information here – https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-3-specialty-occupation-workers-from-australia
– An unexpired Form I-94 with a notation reflecting E-3S nonimmigrant status. As of Jan. 30, 2022, USCIS and CBP began issuing Form I-94 with a new admission code for spouses of E-3 workers: E-3S. An unexpired Form I-94 reflecting this new code is acceptable as evidence of employment authorization under List C of Form I-9.
Looks like we still need to submit an I766 to get the EAD to get an SSN to be able to work.
Hi Dan,
I am in the same boat, do you have an update since you last tried ?
Sharing similar situation to others here, I entered LAX recently with the E3D status. Emailed the local deferred inspection and was able to have it updated to E3S very promptly. I went to obtain my SSN today but was disappointed, got turned back by the SSA agent stating a valid EAD is required to process my application. Hoping to see some positive updates to this.
Hi everyone,
Sharing my recent experience as well…
I recently entered LAX from AUS (10th March), and have the new E3S visa category. The customs officer initially entered it as E3D and was unaware of the changes but was happy enough to go back in and change it after I asked about the new status. I had the “check most recent i94” webpage up and checked it to ensure it was E3S, again he was happy for me to check while I was still at the booth.
I would say definitely don’t assume that it will change automatically and chat about it with the customs/border protection officer!
Thanks Josh! Yes, the Deferred Inspection Unit changed it over the phone! Very easy in the end, when you have the number! It’s 718 553 3683 (If others need it).
Hi Josh,
My I-94 now says E3S. Does that mean I am authorized to work in the US?
Sure does! That should be enough proof!
Hi Josh,
Unfortunately the ground reality does not seem to match.
The SSA still ask for a EAD for a E3S classification in June.
If you have any latest news of a first time E3S visa holder who got a SSN with work authorization. Please do share the details of how they managed it.
SSN’s issues with below text, do not show work authorization !
“VALID FOR WORK ONLY WITH DHS AUTHORIZATION” (See example below)
“VALID FOR WORK ONLY WITH INS AUTHORIZATION”
“NOT VALID FOR EMPLOYMENT”
Update: Just arrived in LAX today and still got an E3D on my I-94. Even though I specifically mentioned the new code E3S to the officer, just like you advised! I got referred to the Deferred Inspection Unit as well. Do you know or does anyone know what the process is for correcting your I-94?
I had the same. I contacted the CBP officer in my city and they fixed it.
Wonderful!
Hi Ayesha, may I ask, was this in LAX also? or another state?
Just got mine corrected too by Deferred Inspections. It’s a pretty fast process
Hello Josh,
I just got my E3D visa from the US Embassy in Singapore. I’m scheduled to fly back to the US in 2 days. Just a clarification — My visa still says E3D in its visa class. Is that correct or should it say E3S? Or does the E3S apply to only the I-94 stamp upon entering?
Yep that should be right, and then when you enter your status will be E3S!
First of all, a big thanks to Josh for this great blog to help Aussies in the US.
And, Thank you Nette for your message here.. My wife had recently entered the US and had E3D on her I-94.
We followed the lead by Josh and called the Dallas Deferred Inspection office (because her port of entry was DFW) but the officials here are Super unfriendly on phone and refuse to answer anything on phone.
Then I saw your message here about how easy it was over the phone with New York CBP staff. My wifey called the number that you left here in your message, and Viola..!!! It was changed to E3S in 5 minutes, all over the phone call.
Thank you again for helpful message.
regards,
Sam
Sensational to hear, thanks Sam!
Thanks! Just posting an update on my situation in case it helps someone else – I went through the e-Verify USCIS process to check my employment status and ended up needing to call them to confirm my details, and they told me that E3Ds no longer need to file an I-765 (it’s automatic, as you outlined) but that they can file for one, if they want to.
Very good news! Thanks for this great blog post, without it, I never would have known about this and it’s saving me a ton of time.
This is incredible! Thanks so much for the update. Did they say if it only applied to people who had entered since Jan 31?
Yes, I-94 with the spouse designation meant that spouse no longer required an EAD
Hi Noe,
Can I clarify what you found out, as I am in a similar situation to you.
I just arrived and my class of admission is E3D. Are we able to work straight away, even with a class of admission of E3D without doing anything else? Or, do we need to get it changed to E3DS?
I was directed to make an appointment at the JFK Deferred Inspection Unit, but would prefer to avoid it, if possible!
Thanks!
Rupert
Hey Rubert, you need E3S in your stamp. CBP or the Deferred Inspection Unit is your best bet.
Thanks Josh! Yes, the Deferred Inspection Unit changed it over the phone! Very easy in the end, when you have the number! It’s 718 553 3683 (If others need it).
Sorry, a correction.. My other reply was to Rupert’s message, where he had left the Phone number of NY Deferred Inspection Office.
Great job Rupert. My wife was able to get her status changed to E3S over the phone using the number you left in your reply.
Thank you for your response! For my class of admission, it says E3D but it doesn’t have an S – do you think that means that I don’t have the stamp?
Do you by chance also have a recommendation for a lawyer/law firm that can help with these types of things?
Thanks so much for your help!
Hi Noe, I would say that it means you don’t have the extra status, but I’m still not 100% sure. I haven’t spoken to anyone directly who has it yet. I can recommend a few lawyers found here: https://americajosh.com/learn-more/immigration/