On November 5, 2013, the Board of Immigration Appeals (BIA) issued an unpublished decision that reverses the denial of an adjustment application and holds that the respondent was not required to obtain an employment authorization document as the spouse of an E-2 treaty investor (Matter of Lee, November 5, 2013). While this may seem not to be a big deal, let’s take a closer look.

The procedure for spouses of E-2 foreign treaty investors who seek to work in the U.S. has been to apply for and receive an employment authorization document (EAD) from U.S. Citizenship and Immigration Services (USCIS) before they are allowed to engage in any employment. In Matter of Lee, the respondent was the spouse of an E-2 investor. The spouse applied for adjustment of status in Immigration Court based on an approved visa petition and labor certification. The Immigration Judge denied adjustment of status for unlawful employment, because the spouse worked as a dental technician for more than 180 days without having obtained an EAD from USCIS.

The BIA reversed the denial, reasoning that the immigration regulations do not explicitly require spouses of E-2 investors to obtain an EAD. The regulations mandate that spouses of E-1 investors must obtain an EAD, but are silent as to spouses of E-2 investors. Therefore, the BIA held that an E-2 spouse is authorized to engage in employment regardless of whether or not he or she possesses a valid EAD. Thus, the Court essentially stated that the spouse of an E-2 is essentially “authorized to work incident to status”.

Although the unpublished decision is not binding on any Court or the USCIS, it may serve as persuasive authority when applying for certain benefits from the USCIS or relief from removal in Immigration Court.

Therefore, spouses of E-2 investors are strongly encouraged to continue to comply with USCIS instructions for obtaining an EAD before they engage in employment.

However, at this juncture, it is uncertain how this unpublished decision will be treated by the USCIS and by the Immigration Court. Furthermore, and at the end of the day, an EAD is proof of employment authorization for purposes of obtaining employment and completing Form I-9, Employment Eligibility Verification. The impact of the failure to have the EAD is not clear from the employment verification and employment sanctions perspective.

If you, your friends or your family have any questions about the recent decision about the E-2, Treaty Investor Visa or the EAD that may be required by an E-2 spouse, we encourage you to contact one of the qualified immigration lawyers or attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group by e-mailing us at info@visaserve.com or by calling our office at 201-670-0006 (x107). We have offices in NY, NJ and affiliated offices in Ahmadabad, India; Mumbai, India and in Canada.