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E2 Visa Work Authorization for Spouses

By Nita Nicole Upadhye

Table of Contents

E2 Visa Work Authorization for Spouses

One of the many benefits of the E2 visa is that it allows spouses of the principal visa holder to join them in the US by applying for a derivative E2 visa.

E2 spouses do not have to be the same nationality as the principal E2 visa treaty investor, and they are normally granted permission to stay in the US for the same period of time as their spouse. They can also work while they’re in the US, and are subject to notably far less stringent work restrictions than the E2 principal visa holder.

In this guide, we explain the current rules for E2 spouses looking to work in the US.

 

Can E2 spouses work?

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 can undertake. The spouse can work for the E-2 business, start their own business or take up employment for another organization, although exemptions apply, including high-security government-related jobs and jobs that specifically require US Citizenship. Employment may also be full-time or part-time.

 

Employment authorization rules for E2 spouses

Since a change in the official US immigration guidance in 2021, spouses who are granted E2 derivative status automatically attain work authorization with their visa. This is referred to as having employment authorization ‘incident to’ their valid E2 status.

In practical terms, this means E2 spouses no longer need to apply for an employment authorization document to get a job or work in the US, although they may wish to do so as proof of their lawful working status by filing Form I-765 with USCIS for a fee.

The exception to this rule are spouses of long-term investors in the Commonwealth of the Northern Mariana Islands (E-2 CNMI Investors) who are required to apply for employment authorization per 8 CFR 274a.12(c)(12).

 

Proof of US employment authorization for employers

E2 employees may be required to provide documentation from the Department of Homeland Security to prove their permission to work to their US employer. The documentation would be relied on by the employer when completing Form I-9 to verify the worker’s identity and employment authorization of individuals hired in the United States. The relevant acceptable documents are listed in List A-C for Form I-9.

Examples of acceptable proof of work authorization for E2 spouses include:

  • Valid Form I-94 with new admission code E2S, reflecting nonimmigrant status.
  • Valid Form I-94 together with a notice from USCIS regarding the new admission code. 
  • Valid EAD (Form I-766).
  • Expired EAD with supporting documentation to show automatic extension (see below).

 

Automatic extension of EAD for E2 spouses

Certain E2 spouses qualify for automatic extension of existing Form I-766 EAD, where the following conditions are met:

  • Their renewal is filed in-time with Form I-765 and is based on the same E visa status; and
  • They can show a valid Form I094 proving their status as an E2 or E2S nonimmigrant.

 

Since May 2022, DHS has temporarily increased the automatic extension period to 360 days (from 180 days), for up to a total of 540 days, until whichever comes first out of the following:

  • The end date on the dependent spouse’s Form I-94 showing valid L-2 or L-2S nonimmigrant status, as applicable; or
  • The date the application was approved or denied to renew the previous EAD; or
  • 540 days from the “Card Expires” date on the front of the previous EAD.

 

E2 spouses who qualify for the automatic EAD extension can rely on the following as proof of lawful employment authorization:

  • Form I-94 stating valid E2 or E2S status
  • Form I-797C for in-time “class requested” renewal application
  • Expired EAD issued under Category A17

 

How to apply for a social security number

As an E2 spouse, you should apply for a Social Security Number (SSN) by filing form SS-5 with the Social Security Administration (SSA).

 

E-2 dependent children

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.

 

Paths to a US Green Card

Since the E-2 visa itself does not lead directly 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.

Possible routes which can lead to permanent residence include:

  • EB3 Green Card – for individuals with an undergraduate degree or higher, or a level of certification for a job that requires at least two years of formal training, such as medical professionals, computer programmers.
  • EB2 Green Card – for individuals with advanced degrees such as a PhD or MA, or those with five or more years in their field, provided that they have a US-based employer-sponsor.
  • EB1 Green Card – for ‘Aliens of Extraordinary Ability’ who are recognized leaders in their field. No degree is necessary to be eligible.

 

Need assistance?

NNU Immigration specialize in all aspects of the E2 visa, supporting principal applicants and their dependents through the USCIS application processes.

If you have a question about US employment authorization or any aspect of the E2 visa, contact us.

 

E2 spouse FAQs

Can my wife work on E2 visa?

Following a change in the official guidance, E2 spouses can now work in the US without the need for an employment authorization document. Their employment authorization is considered to be incident to their visa status.

 

What do you need to work in the US for a E2 visa spouse?

E2 spouses can rely on their E2 status to work lawfully in the US, with very few restrictions on the type of employment that can be undertaken.

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

Author

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.

Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

Need legal advice?

For specialist advice on your query, get in touch with our team of US immigration attorneys.​

Need legal advice?

For specialist advice on your query, get in touch with our team of US immigration attorneys.

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For specialist advice on a US immigration or nationality matter for your business, contact our US immigration attorneys.

For specialist advice on a US immigration or nationality matter for your business, contact our US immigration attorneys.