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E2 Visa for Spouses & Dependants

E2 Visa for Spouses & Dependants

The E2 Treaty Investor visa provides significant immigration benefits for anyone setting up or buying a business in the US, and for employees of these investors, including the ability to bring dependants with them.

In this guide, we look at the rules and requirements for E2 visa spouses & dependants, helping investors and E2 employees to navigate the visa process on behalf of their spouse or children, so that your loved ones can accompany or follow to join you in the US.

 

What is the E2 dependant visa?

An E2 dependant visa is a derivative visa for the spouse or children of an E2 treaty investor or an employee of a treaty investor. These family members may apply at the same time as the E2 investor or E2 employee, or once the investor or employee has been issued with valid status.

The E2 visa is a nonimmigrant visa for nationals of countries with whom the US maintains a treaty of commerce and navigation, where E2 classification will allow for both the principal investor to come to the US when investing in and overseeing the running of a business, as well as any senior and essential employees. The E2 treaty enterprise could be either a new start-up business in the United States or an established US business, provided that:

  • the treaty investor has invested, or is in the process of investing, a substantial amount of capital in that business
  • the treaty investor will solely develop and direct the operations of the business
  • the treaty investor can show at least 50% ownership or possession of operational control
  • the US business will be more than marginal, where it must be capable of earning more than a minimal living for the treaty investor and their family.

 
For any employee of a treaty investor, they must share the same nationality as the investor. The employee must also be planning to work in either an executive or supervisory role in the US enterprise, or possess skills considered essential to their employer’s operations in the US.

 

What does the E2 dependant visa allow?

An E2 dependant visa will allow a spouse or dependent child to accompany or follow to join an E2 nonimmigrant in the US, whether the principal applicant or primary visa-holder is the E2 treaty investor or the employee of a treaty investor. Provided the dependant meets the relevant requirements, and the application for E2 nonimmigrant classification is approved, they will generally be granted the same period of stay in the US as their spouse or parent.

In most cases, the initial grant of stay for the treaty investor or their employee will be for 2 years, although it could be longer. However, another key benefit of an E2 visa is that it can be renewed (from outside the US) or extended (from inside the US), with no limit to the number of times a renewal or extension can be granted. Provided the principal applicant continues to satisfy the E2 visa requirements as a treaty investor or employee, they can apply to renew their E2 visa, or petition for an extension of E2 status, as many times as they like. Equally, as the validity period of the E2 dependant visa is directly tied to that of the E2 visa-holder, a spouse or any children can apply at the same time and expect the same grant of leave.

There will generally be no restrictions on where an E2 spouse can work throughout their stay in the US, provided they are able to provide proof of their E2 status. In contrast, the E2 treaty investor, or an employee of the treaty investor, will only usually be able to work for the business in which the investment has been made. E2 dependant visa-holders can also undertake part-time or full-time study in the US. This means that the children of the treaty investor, or the children of a senior or essential employee, will be able to attend school.

 

E2 dependant visa requirements

To be eligible for an E2 dependant visa, the applicant must be either:

  • the spouse of the E2 treaty investor or the spouse of an E2 employee
  • the unmarried child under the age of 21 of the principal applicant or primary visa-holder.

 
Spouses and qualifying dependent children do not need to hold the same nationality as the treaty investor, and even though employees of a treaty investor must share the same nationality to be eligible for E2 classification, the nationality of any dependants can differ.

If a couple is in a same-sex marriage, and that marriage is valid in the country where it took place, it is valid for the purposes of an E2 visa. However, US visa law does not recognise common-law relationships. This means that the common-law partner or fiancé(e) of a treaty investor, or employee of a treaty investor, will not be eligible to apply for derivative visa status.

Equally, the parents, grandparents, and brothers or sisters of the treaty investor or employee, will not be eligible for E2 status, even if the principal applicant or primary visa-holder is the main breadwinner or caretaker. These relatives would instead need to apply for a visa in their own right, such as a B2 visitor visa. The B2 visa is a nonimmigrant visa allowing the visa-holder to visit family in the US for 6 months at a time.

Importantly, the children of an E2 nonimmigrant will lose their E2 visa status when they turn 21 years of age. At that stage, they will also need to apply for a visa in their own right to be able to stay on in the United States, for example, an F1 visa to pursue or complete an academic course at a US college, or an M1 visa to pursue or complete a vocational course.

 

What is the process to apply for an E2 dependant visa?

An application for an E2 dependant visa will usually be made from outside the United States, either when applying at the same time as the principal applicant to accompany them to the US or applying separately to join the E2 visa-holder in the States at a later date. Either way, an application will need to be made using online Form DS-160 and paying the relevant fee.

Once an application has been submitted, a spouse or dependent child aged 14 or over will generally be required to attend an interview at the US embassy or consulate in their country of residence. In general, children under 14 are not required to appear in person for an interview, although they must still usually be physically present in their country of residence at the time the application for an E2 dependant visa is submitted. If the parent is applying for a visa at the same time, they may bring the child’s completed visa application and documentation to their visa interview. Alternatively, the child’s documents can be submitted via courier.

In support of an E2 dependant visa application, the following documents will be needed:

  • the DS-160 application confirmation page
  • the DS-160 application fee receipt
  • the visa appointment confirmation page, where relevant
  • a valid passport or other travel document, in some cases with at least 6 months beyond the holder’s stay in the United States, depending on their nationality
  • any old passports held by the applicant
  • a 5 x 5 cm colour photograph taken within the last 6 months, unless a photograph has already been successfully uploaded as part of the online DS-160 application
  • proof of the applicant’s residence or immigration status in their home country
  • proof of any previously issued US visas
  • proof of a qualifying relationship, including the original marriage certificate for a spouse, and original birth or adoption certificate for dependent children
  • proof of a bonafide marriage, such as wedding photos, invitations and receipts
  • a police certificate, known as an ACRO, if the applicant has been arrested, cautioned or convicted, where rehabilitation of offenders legislation does not apply to US law
  • any relevant documents if the applicant has been denied entry into or deported, or removed from the United States.

 
Unless an application is made at the same time as the principal applicant, the E2 dependant will also need to provide a copy of their spouse or parent’s valid visa.

The E2 dependant must furnish the necessary documentation, otherwise risk their application being delayed or denied. The applicant will also need to satisfy the reviewing consular officer that they meet the requirements for E2 classification, for example, being in a bona fide marriage. Even where a spouse or parent is already in the US with valid E2 status, this does not guarantee a successful application for any dependants. Their eligibility for E2 classification will still need to be determined on a case-by-case basis, having regard to the information contained within Form DS-160 and the supporting documentation.

If the E2 dependant is already present in the United States under a different nonimmigrant classification, they will instead need to apply to US Citizenship and Immigration Services (USCIS) using Form I-539, Application to Change/Extend Nonimmigrant Status.

 

E2 dependant visa processing times

If an E2 spouse or dependent child is applying at the same time as the treaty investor, the US business will first need to be reviewed by the E-Visa Unit, a process which can take around 45 days. The principal applicant will also need to provide extensive documentation to prove the requirements for E2 classification. In some cases, the review of the business in which the substantial investment has been made may be delayed if further documentation is requested.

However, provided the treaty investor business has been approved by the E-Visa Unit, an interview can be arranged. The availability of interview dates will all depend on the embassy or consulate dealing with the dependant’s application. For example, the current appointment wait times in London for ‘Other nonimmigrant visas’ (including E2 dependant visas) is 90 calendar days, while for Toronto this is 231 days. This means that overall processing times can hugely vary between different countries, although it may be possible to expedite the interview appointment wait times in urgent and unforeseen circumstances. However, this can only be done once an online application has been submitted and the relevant fee paid.

Once an E2 dependant has been interviewed, the remaining processing time will usually be relatively short. For example, for the US Embassy in London, if an E2 dependant visa application is approved during the interview, the average processing time will be 5 working days. A further 2-3 working days should also be allowed for return of their passport.

If an E2 dependent child under the age of 14 submits their application by courier, processing in London is currently estimated to take 21 working days from the date of receipt of that application. However, these are guidelines only and can vary depending on the circumstances of the case. The consular officer dealing with the matter also reserves the right to request that an applicant appear in person for an interview after reviewing their application.

 

E2 dependants work authorization rules

E2 classification permits the spouse of a principal E2 nonimmigrant, but not their dependent children, to engage in employment in the United States. However, for the spouse of E2 treaty investors or employees in valid E2 status, they will usually be considered employment-authorized incident to status. This means that, in almost all cases, an E2 spouse will not be required to apply for employment authorisation to be able to legally undertake paid employment in the United States. USCIS will consider spouses under E2 classification to be authorised to work in the US based on their valid nonimmigrant E2 status.

As of 30 January 2022, USCIS and US Customs and Border Protection (CBP) began issuing Form I-94 (Arrivals/Departure Form) with a new admission code for spouses of E2 workers: E-2S. In this way, E2 spouses will be able to provide an unexpired I-94 reflecting this new code as evidence of their permission to accept employment.

The employment that an E2 spouse can undertake is not limited to working for the same business in which their spouse has made an investment, or works as a senior or essential employee. There are no restrictions on where, or for whom, E2 spouses can work.

 

Need assistance?

NNU Immigration are E2 visa specialists based in London. For expert advice and guidance on any aspect of the E2 application for investors, employees, spouses or dependants, contact our US attorneys.

 

Employment verification letter FAQs

Can my spouse work if I have an E2 visa?

E2 classification permits the spouse of a principal E2 nonimmigrant to undertake paid employment in the United States, where they will usually be considered employment-authorized incident to status, provided they have been approved for an E2 dependant visa.

 

What is E2 dependent visa?

An E2 dependent visa is a derivative US visa for the spouse or children of a principal E2 nonimmigrant. E2 nonimmigrant classification is for those investing in and overseeing the running of a business, or for senior or essential employees.

 

Can E-2 dependent work?

E-2 classification permits the spouse of a principal E-2 nonimmigrant, but not their dependent children, to engage in employment in the United States. A spouse with valid E2 status will be able to work without restriction.

 

This post does not constitute direct legal advice and is for informational purposes only. 

By Nita Nicole Upadhye

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