Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor or employee. Spouses and children may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee. If the family members are already in the United States and are seeking changes of status to or extensions of stay in an E-2 dependent classification, they may apply by filing a single Form I-539, Application to Change/Extend Nonimmigrant Status, with fee.
Spouses of E-2 workers in valid E-2 or E-2S status are considered employment authorized incident to status, except for 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).
DHS-issued evidence of such employment authorization, particularly that may be presented to employers for completion of Form I-9, Employment Eligibility Verification, include:
- An unexpired Form I-94 with a notation reflecting E-2S nonimmigrant status. As of Jan. 30, 2022, USCIS and CBP began issuing Form I-94 with a new admission code for certain spouses of E-2 workers: E-2S. An unexpired Form I-94 reflecting this new code is acceptable as evidence of employment authorization under List C of Form I-9.
- An unexpired Form I-94 with a notation reflecting E-2 nonimmigrant status, together with a notice from USCIS regarding the new admission code. USCIS will send E spouses with a Form I-94 issued by USCIS before Jan. 30, 2022, that was notated with E-2 nonimmigrant status and who are employment authorized incident to status, a notice regarding the new admission code that, together with an unexpired Form I-94 reflecting E-2 nonimmigrant status, serves as evidence of employment authorization for such spouses under List C of Form I-9. For more information, see this web alert.
- An unexpired Employment Authorization Document (EAD). E spouses who are employment authorized incident to status are not required to request employment authorization by filing Form I-765, Application for Employment Authorization, but may still file Form I-765, with fee, in order to obtain an Employment Authorization Document (Form I-766 EAD). Form I-766 EAD can be presented to employers as evidence of both identity and employment authorization acceptable under List A of Form I-9.
- An expired EAD with additional documentation to show the EAD is automatically extended (as discussed below).
Certain E spouses qualify for the automatic extension of their existing Form I-766 EADs if they meet the following conditions:
- They timely filed a renewal Form I-765, Application for Employment Authorization, based on the same E nonimmigrant status; and
- They have an unexpired Form I-94 showing their status as an E-2 or E-2S nonimmigrant.
Normally, DHS regulations provide for an automatic extension period of up to 180 days from the expiration date stated on the EAD. However, DHS has published a temporary final rule increasing the automatic extension period. Effective May 4, 2022, DHS is temporarily increasing the automatic extension period and providing up to 360 days of additional automatic extension time, for a total of up to 540 days, to eligible renewal applicants. The automatic EAD extension will therefore continue until whichever comes first:
- The end date on the dependent spouse’s Form I-94 showing valid L-2 or L-2S nonimmigrant status, as applicable;
- The date we approve or deny their application to renew the previous EAD; or
- 540 days from the “Card Expires” date on the front of the previous EAD.
Additional information on the temporary increase of the automatic extension period is available on the Automatic Employment Authorization Document (EAD) Extension page.
Eligible E spouses may present the following evidence of the automatic EAD extension to employers for Form I-9 purposes:
- Form I-94 indicating the unexpired E-2 or E-2S nonimmigrant status;
- Form I-797C for a timely-filed EAD renewal application (Form I-765) stating “Class requested” as “(a)(17)”; and
- The expired EAD issued under the same category, Category A17.
As discussed above, the E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States. Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, or the family members separately travel abroad and return to the United States within the new readmission period, the new readmission period will not apply to the family members. To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E status and apply for an extension of stay before their own validity expires.
