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
My spouse’s I797 approval already reflected E3. Does she still need to apply for EAD, or can she work by just showing her E3S proof for I9 verification to her employer?
If it says E3S, you’re all good without EAD!
My wife entered in March 2022 on an E3D, as E3S wasn’t issued. How do we convert that to an E3S visa?
Hi Paul, it might be too late but you can try https://americajosh.com/blog/important/deferred-inspection-correcting-immigration-entry-mistakes-i94-fixes/
I have had no success in changing a E3D to an E3S. The various responses I have received from Deferred Inspection are….
– You must contact USCIS ( and then I get no reply from USCIS, OR, a msg that I need to contact Deferred Inspection )
– Visa was given by embassy and can’t be changed
– When contacting other Deferred Inspection offices because my closest one is no help….. You need to contact your closest office.
So frustrating…..
Hi Mick,
That’s SO frustrating, may I ask what you said when you asked them? The second one leads me to believe it might just be wording?
Today my E3S wife presented at a Social Security office in Houston, Texas, with application for Social Security number and they issued her a letter saying that they can not issue her a Social Security Card or number at this time because she does not have an I-766. She is an attorney and told them about the change in policy but they said their policy is that an I-766 is required and they also want a marriage certificate. Nothing she could say or show them persuaded them to respond differently. They said that is their policy and until they get a general (internal) notification of change of policy, they will not issue her a SSN without I-766 and marriage certificate. They said their data entry system would not allow them to issue an SSN in the absence of I-766 and marriage certificate. What to do?
SO FRUSTRATING! We’ve had success with people printing out the policy page I link above from the Social Security office so that they can see the change in their own policy.
Update: E3S spouse spent two hours on the phone to Social Security today where they agreed a nation-wide SSA system change is required so that E3S can be recognized as not requiring EAD when applying for SSN. Advised to lobby via local SSA office management. Heading back in this week.
Update: After second visit to Houston office in mid Oct 2022, E3S application for SSN was taken in for review (after much explaining in response to initial refusals) and SSN was received by mail at the beginning of December. Thank you to this site for all the tips and inspiration to persevere!
Further update: After second visit to Houston office in mid Oct 2022, E3S application for SSN was taken in for review (after much explaining in response to initial refusals) and SSN was received by mail at the beginning of December. Thank you to this site for all the tips and inspiration to persevere!
Hi Josh, thanks for the comprehensive post 🙂 I have a question though, would you know if I need to change my passport stamp (it’s currently E3-D) to E3-S even though my most recently i-94 I was able to get my status changed to E3-S? I’ve applied for the SSN, but I’m still waiting to hear from them… Thanks
No you’re good. It’s the status that matters. I believe they still stamp E-3D (but not 100% sure on that one).
Hi josh, my husband just received his L2s, since we do not need to apply for EAD, is his SSN automatically be send to our address or do we need to apply for it? Thank you.
You need to apply with the Social Security Office https://americajosh.com/learn-more/social-security/
Hi everyone,
Same E3D problem.
I tried to apply for SSN in Apr in OC, CA and they would not even know about these new regulations. I tried again some time later and they said they could accept the application but it’s possible the system wouldn’t let it go through without EAD.
So I applied for EAD, it’s been more than 3 months now and I haven’t even got the receipt number to track the status. I tried calling USCIS hotline and they couldn’t help without the receipt number. I sent e-mails to lockbox support and got no reply. Btw, the fee was charged about two weeks after I sent the documents.
Does anyone know what to do? Is this normal wait time? I’m getting a bit anxious and feel confused since I can’t really reach anyone.
I would appreciate if anyone can help or give an advice.
Are you on an E-3S status or E-3D?
E3S
I’ve got a reply from lockbox support and they gave me the receipt number. Seems like application is in process and the receipt was sent. They said they they’ll send it again.
So if anyone need to reach out USCIS about lost/undelivered receipt notice these the contacts
http://www.uscis.gov/e-request
E3s, applied for ssn in Annapolis. They insist on I766 being necessary. Would not accept uscis website. Any ideas? Better office to apply at?
Hi Ellen, use this one:
https://secure.ssa.gov/poms.Nsf/lnx/0110211420
This is SSA’s own policy page and if you scroll down you will see: “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. “
Hi Josh,
I’m in the same situation with Ellen as a E3S with my application for SSN (in Washington, DC) They would not accept the details on the SSA website as the internal system insists I766 being necessary.
I’ll assume the best option is try a different office to staff the application.
Yep, unfortunately. We did have someone have some success printing out the SSA website details and taking that in with them to show their own policy numbers though, last week.
Hi all,
Any first time E3D/E3S visa holder here, without EAD, who managed to get a SSN WITHOUT one of the following texts below ?
“VALID FOR WORK ONLY WITH DHS AUTHORIZATION”
“VALID FOR WORK ONLY WITH INS AUTHORIZATION”
“NOT VALID FOR EMPLOYMENT”
To keep everyone updated: I entered in early May with an E3D (my bad – was in a hurry and forgot to ask for the S). Had it amended by deferred inspections in Seattle to E3S. Just back from the social security office in Seattle where I applied for my SSN with no questions asked, looks like they’ve updated their systems!
Hi Maddie,
We came in June via Atlanta. My wife got E3D stamped, we had it corrected to E3S in 5 days.
Then we went to the SSN office and they told us the SSN will come without work auth and we still need an EAD. So it does not look like the system is updated, at least in Atlanta !
We had the I-94 with E3s, but it did not help.
Did your SSN arrive yet ? what does it say on it about authorization to work ?
Hi Sahil – I have received my SSN and had my i9 work authorization approved and have started working with my US employer. I did have to call DHS on my first day to confirm my details, but that was straightforward and fast. Hopefully you get this sorted out. I would note that the SSN does not provide work authorization – this comes from your visa. If you have questions I’d recommend reaching out to your immigration lawyers.
Hi Maddie,
Once E3D is changed to E3S in i-94 and i got my SSN today, so when i apply for jobs employer is asking proof for work authorization or EAD. So do i need submit i-9 form as proof or any other document to employer. Sorry I’m not sure. Can you please let me know.
Many thanks
RK
Could you please clarify what SSA office did you go to? We tried Lynwood office with no success. Also, did you apply online or used a paper form?
I applied for SSN in Austin with L2S status. They have accepted the application, however it has been more than 2 months now, they not processing SSN saying, pending with Home Land Security for Immigration approval. Frustration to add is, once an Application for SSN is made, can not apply for Drivers License in Texas, until SSN is received, as the rule says, an affidavit can be submitted, only if “Not applied for SSN”. Additionally, a company which extended offer, not accepting only L2S status and requesting Drivers License. Everything is struck with SSN now. Any guidance or help ?
Hi,
I have exactly the same situation, came on L2S and can’t get my SSN. They took my application in early March and still no progress.
Did your case progress in any way since you last posted?
I’m sorry to hear this! It’s meant to be all sorted but clearly not!
I am exactly in same situation and it’s really frustrating that SSN is pending for more than 10 weeks now for L2S status. The SSA office says it’s pending with DHS immigration verification and they cannot do anything, we just need to wait. Any luck for similar cases going through?