E-3 Spouses (“E-3S” Status) must enter the United States with E-3S Designation to be eligible to work immediately upon entry

Spouses of E-3 visa holders with the E-3S designations are allowed to work in the United States by virtue of their status. E-3 visas are nonimmigrant specialty occupation visas similar to H-1B visas available exclusively to citizens of Australia. Even though the E-3 visa holder must be a citizen of Australia, their spouses are not required to be citizens of Australia to obtain E-3S designation. Prior to January 30, 2022, these spouses had to obtain an employment authorization document before they could work for a U.S. employer. Several months ago (July 2022), the spouse of an E-3 visa entered the United States to join the E-3 principal in the United States. Unfortunately, at the airport, he was inadvertently admitted under the designation of E-3D – dependent of an E-3 visa holder instead of the designation of E-3S (Spouse of E-3 visa holder). His Arrival/Departure Record (Form I-94) reflected his status as “E-3D” and not “E-3S”. This is important because all persons who are admitted under E-3S are eligible to obtain a social security number and start working in the United States immediately based upon their nonimmigrant E-3S status as long as they can provide an unexpired Arrival/Departure Record (Form I-94) with the designation of “E-3S” (Spouse of E-3 nonimmigrant). They are no longer required to obtain and present a separate, physical, employment authorization document to their prospective employer. In this case, because the spouse not given the correct designation at the airport, he was not able to obtain his social security card and could not complete the Employment Eligibility Verification Form (Form I-9) to be able to start working in the United States. Fortunately, the Honolulu Office of Customs and Border Protection does recognize this as an error on their end and has set up a procedure to correct the Arrival/Departure Record (Form I-94) documents. Once corrected and in possession of his new, unexpired, Arrival/Departure Record (Form I-94) with the E-3S designation, the E-3 spouse was able to obtain his social security card and is probably already working in the United States. Employment Authorization for Spouses based on their nonimmigrant status is also available for spouses of nonimmigrants in E-1 (treaty-trader), E-2 (treaty-investor) and L-1 (intra-company transferee) status as long as they have an unexpired Form I-94 reflecting the following respective codes – “E-1S”, “E-2S” or “L-2S”. This is also available for spouses who extend or change their nonimmigrant status in the United States and are issued new Form I-94s reflecting their nonimmigrant status. Spouses in any of these categories (E-1S, E-2S, E-3S or L-2S) no longer have to apply for a separate Employment Authorization Document.