E-Verify

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Update on E and L Spouse Work Authorization

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July 18, 2022 update:

The M-274 Handbook for Employers was updated with guidance on how to verify work authorization for E-2 and L-2 spouses.

May 18, 2022 update:

Effective May 4, 2022, the automatic extension period is now 540 days for eligible spouses, not to exceed I-94 validity. The USCIS had announced in November 2021 that eligible spouses could receive 180-day extensions.

March 21, 2022 update:

On March 18, 2022, USCIS provided additional guidance on E-3 and L-2 spouse work authorization. Specifically and as noted below, an I-94 with the “E-3S” or “L-2S” class of admission is a List C document only, and so those seeking to document their work authorization will also need a List B document such as a state issued identification card or driver’s license to complete an I-9 process with an employer. USCIS also indicated that it will be re-issuing older approval notices to reflect the new classes of admission for applicants already in the United States who have an I-94 issued by USCIS.  Further info: https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses

Original post:

Pursuant to a historical settlement agreement announced in November 2021, U.S. Customs & Border Protection (“CBP”) headquarters has confirmed that it is issuing new classes of admission for E and L spouses, including E-1S, E-2S, E-3S, and L-2S. These new classes of admission are being printed on I-94s issued by CBP for entries to the U.S. on or after January 31, 2022, and are also being printed on USCIS approval notices for E and L spouse status extension approvals on/after January 31, 2022. Pursuant to the November 12, 2021 USCIS policy alert, the new I-94 with E-1S, E-2S, E-3S, or L-2S class of admission is considered a List C document for employment verification (I-9) purposes, i.e., persons with these new classes printed on their I-94s are now authorized to work incident to status and without taking further steps such as applying for a work permit. That said, we are awaiting conforming I-9 guidance from USCIS in USCIS’s M-274 Handbook for Employers, which has not, as of this writing, been updated with the new classes of admission.

© Jewell Stewart & Pratt PC 2022

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Social Security Administration Resumes Sending No-Match Letters to U.S. Employers

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In March of 2019 the Social Security Administration (SSA) resumed sending “no-match” letters (formally known as Employer Correction Request Notices) to U.S. employers whose 2018 W-2 wage reports contained non-matching combinations of names and Social Security Numbers (SSNs). According to SHRM, about 575,000 such letters have been issued to employers so far this year. 

By way of background, a no-match letter is simply a notification from SSA to an employer that a certain number of wage reports prepared by an employer contained name and SSN combinations that do not match SSA records.  No-matches can arise from benign reasons, such as typos or hyphenated names.

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New California Employers’ Requirements under AB 450: Immigration Worksite Enforcement Actions

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California Assembly Bill No. 450 (AB 450) regarding California employers’ obligations when subject to federal immigration worksite enforcement actions was signed by Governor Brown on October 5, 2017, and took effect on January 1, 2018.  As part of a group of immigration-related bills recently signed into law, AB 450 is hailed by advocates as solidifying California’s status as a Sanctuary State.  The law introduces several requirements applicable to public and private employers in California.  How the California Labor Commissioner or California Attorney General will enforce the law is still an open question, given that federal law ordinarily preempts state law in the area of immigration, and because there is uncertainty surrounding which federal immigration enforcement agents must be refused entrance or documents under the new California law.  Below we detail a few of the new requirements for employers:

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New regulation on F-1 STEM OPT extensions, effective May 10, 2016

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On March 11, 2016, the U.S. Department of Homeland Security published a Final Rule, effective May 10, 2016, 81 Fed. Reg. 13039 (March 11, 2016), that provides requirements and procedures for 24-month extensions to post-completion Optional Practical Training (OPT) work authorization of foreign nationals who are in F-1 student visa status with U.S. degrees in fields of Science, Technology, Engineering, and Mathematics (“STEM” fields). The new regulation also contains transition provisions for approved and pending STEM OPT applications filed under prior regulations. Finally, the new regulation carries over the “cap gap” work authorization and status extension provisions that existed under prior rules.

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New regulation on F-1 OPT extensions

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On April 8, 2008, the U.S. Department of Homeland Security published an Interim Final Rule, effective immediately, that provides for additional Optional Practical Training (OPT) work authorization for foreign nationals in F-1 student visa status who would otherwise be limited to twelve months of OPT.  The new regulation provides two types of prolonged OPT: (1) an automatic extension of OPT to bridge the “cap gap” between an employee’s OPT expiration date and the October 1st date when an approved cap-subject H-1B petition takes effect; and (2) a seventeen-month extension, upon application, of OPT for graduates of U.S. degree programs in Science, Technology, Engineering and Mathematics (“STEM” degrees) who have jobs related to their field of study with employers who are enrolled in the government’s E-Verify program.