E2 visa work authorization for spouse
Securing E2 Visa Work Authorization for Spouses
If you are the spouse of an E-2 visa holder, and are in the US on a valid, dependent E-2 visa, you can make an application for an employment authorization document (“EAD”) by filing a petition at one of four service centers in the US.
While the Board of Immigration Appeals (BIA) recently held that an EAD card is not required for E-2 spouses, USCIS regulations do not reflect this position. As such, we recommend securing work authorization prior to taking up employment in the US to avoid anypotential issues with future USCIS applications.
Note that E-2 dependent children however are not permitted to be employed in the US.
What is an EAD?
Whereas the E-2 visa holder is restricted to work with the E-2 company, there are very few limitations on the type of work an E-2 spouse with EAD can undertake. The spouse can work for the E-2 business, start their own business or take up employment elsewhere. The main exemptions to note include high security government-related jobs and jobs that specifically require US Citizenship.
It works as an open market work authorization and offers your spouse great employment flexibility and convenience. All he/she needs to do is file Form I-765 with fee. Usually, it takes two to three months to issue a permit and afterwards, there is no specific restriction as to where he/she may work. Generally speaking, the spouse can work for any employer and in any job, except certain government jobs that requires U.S. citizenship. The employment may be full-time or part-time. Likewise, the spouse may also start his/her own business using the work permit
How long is an EAD valid for?
Dependents included on the E-2 investor visa application are given the same nonimmigrant status and would be typically given the same length of stay as the principal applicant.
The EAD typically will be valid for the shorter of either:
- the period of time for which the E-2 spouse’s status is valid, or
- the period of time for which the principal E-2 holder’s status is valid, or
- two years.
In advance of expiry, if you intend to continue to work in the US, you will need to apply to renew your EAD. The process is the same as the initial application, requiring the same comprehensive supporting documentation to evidence continued eligibility.
How to apply for E2 visa work authorization as a spouse
Complete and file Form I-765 and provide the following supporting documents:
- Copy of ID passport page
- Proof of marital relationship, ideally a photocopy of marriage certificate.
- Photocopy of both sides of your Form I-94
- Photocopy of Form I-94 for the principal E-2 visa holder (your spouse)
- Any previous employment authorization card issued (front and back)
- Any previous I-797 approval notices for employment authorization
- Old I-20s if applicable
- Signed I-765 form (original signature)
- Signed G-28 form (original signature)
- Two passport-style photographs compliant with USCIS specifications
- Filing fee
USCIS will issue a Form I-797 Receipt Notice to the person named in Part 1 on the I-765 and will send the Receipt Notice to the address listed in Part 1. When USCIS approves the request for an EAD, it will mail the EAD card to the applicant via first-class U.S. mail. Processing times at the various USCIS Service Centers vary, but most EADs are produced in 60-90 days.
While minor children (ie under 21 and unmarried) of E-2 holders can apply as dependents to accompany their parent in the US, they will not be permitted to take up paid employment.
They may attend public or private school under the E2 visa status (as can spouses).
Once the child ‘ages-out’ ie, reaches 21, they will no longer hold dependent E-2 status and must in advance secure permission to continue residing or studying in the U.S.
The F1 student visa is a common option as it allows former E-2 dependents to finish their studies in the US.
Alternative options may be available. For example, they may be able to stay on in the US and work in the business if they qualify as E-2 in their own right – this would require them to own 50% of the E-2 business.
Routes to Green Card
Since the E-2 visa itself does not lead to US permanent residence, it may be possible for the E-2 spouse to pursue options which do open up a path to Green Card eligibility for the family as a whole. Take advice on the immigration employment schemes which could be open to E-2 spouses.
Do you have a question about E2 visa work authorization? NNU can help!
While you cannot apply for your EAD until you are lawfully in the US as an E-2 dependent, we advise securing work authorization before taking up employment in the US.
NNU Immigration specialize in all aspects of the E2 visa, advising and supporting principal applicants and their dependents through the USCIS application processes.
For advice about your application, contact us.
This article does not constitute direct legal advice and is for informational purposes only.