Employment Authorization for Spouses of Investors (E-2 Nonimmigrants)

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. E-2 spouses do not have to be the same nationality as the principal E-2 visa treaty investor.

Can E-2 Spouses Work in the United States?

In the past, spouses of E-2 investors were not able to work in the U.S. unless they applied and had an approved work authorization.

On Nov. 12, 2021, the United States Citizenship and Immigration Services (USCIS) issued a policy announcement to clarify that they will consider spouses in E (and L) status to be authorized to work based on their valid E or L nonimmigrant status. Since the November 2021 announcement, the Department of Homeland Security added new Class of Admission (COA) codes to distinguish between E and L spouses and children.

Employment Authorization Rules for E-2 Spouses

As of Jan. 30, 2022, USCIS and Customs and Border Protection (CBP) began issuing Forms I-94 with the new COA codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9.

Eligible spouses in E status may present the following evidence of as proof of work authorization:

• Valid Form I-94 with new admission code E-2S, 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

Conclusion

If you are a spouse in E status and you entered the U.S. after January 30, 2022, you should have received an Form I-94 from CBP that indicates your status as E-2S (or E-1S for spouses of E-1 treaty traders or E-3S for spouses of E-3 visa holders). If you do not have this annotation on your I-94 and you entered after January 30, 2022, you should reach out to CBP to get it corrected.

If you entered the U.S. before January 30, 2022, but you have an approved Form I-539 from USCIS and you have an unexpired Form I-94, you should have received a notice from USCIS by April 30, 2022. If you have not received it, you should reach out to USCIS.

To schedule a consultation with one of our attorneys and discuss your questions about employment authorization or need help contacting CBP to make changes to your Form I-94, please click HERE.