On November 12, 2021, USCIS issued a policy announcement to consider E and L spouses to be employment authorized based on their valid E or L nonimmigrant status. Subsequently, the Department of Homeland Security (DHS) added new Class of Admission (COA) codes to distinguish between E and L spouses and children. Specifically, for E-3 spouses, as of January 30, 2022, U.S. Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) began issuing I-94s using the new COA code for E-3 spouses as “E-3S.” 9 FAM 402.9-9 acknowledges this distinction but does not address the E-3D visa issuance by DOS.
E-3 dependent spouses’ report confusion at the port of entry as some CBP officers enter the E-3D designation for the E-3 spouse applicant’s I-94 entry record rather than the E-3S. Where the officer is relying on the annotation on the visa foil.
This adversely impacts the traveler because to be authorized to work incident to status, the I-94 must reflect the E-3S admission and requires the spouse to obtain an I-94 correction at CB Deferred Inspections.
As the visa classification code for spouses and children of E-3s is established in Department regulations at 22 CFR 41.12 as E-3D. The E-3D spouse is reminded to advise the CBP officer at the border on admission the appropriate designation of their I-94 is E-3S
