At the end of 2021, it was announced that following a class action lawsuit in Washington (Shergill et al v. Mayorkas), it was recognized that the work authorization of the spouse of an E2 (and E1/E3/L1) visa holder was an automatic consequence of the E2 visa and therefore, an application for a work authorization card (EAD) was not necessary (official text can be found here).
However, the practical implementation of this change has been slow. As of January 31, 2022, individuals in this situation who entered the country have been issued an I94S instead of an I94, which grants the right to work. Ideally, it is recommended to leave and re-enter the country to obtain this status, but it is not a requirement (please see the National Law Review article for more information).
In practice, it is necessary for the employer to validate the employee and for this, the I9 form must be completed. It is important to note that it is necessary to fill out an I9 form for every new hire and to keep copies of the documents that have been verified to ensure that you are not hiring illegal personnel.
One final clarification, the situation of the spouse, even if they have a high-paying job, is not taken into consideration in the renewal or granting of the E2 visa. The business project must generate sufficient income to support the applicant and their family and create jobs. On a daily basis, having a spouse who can more easily work is certainly a benefit.
In conclusion, the recognition of the automatic work authorization for spouses of E2 visa holders in the Shergill et al v. Mayorkas lawsuit was a positive development, but its implementation has been slow. Obtaining an I94S status by leaving and re-entering the country is recommended for work authorization, but not required. However, the spouse's work status does not affect the renewal or granting of the E2 visa, as the business must generate sufficient income and create jobs. Nevertheless, having a spouse who can easily work is a daily benefit.
Sylvain Perret is a business professional who has been living in the United States since 2010. Along with his wife Daphnee, he has established several businesses in the country, including Integrity International Brokers, an agency based in Orlando where he works as a business broker, real estate broker, business consultant, and business plan writer. Over the years, he has helped numerous clients from around the world achieve success in their projects to create or take over a company in the United States with an E2 visa. He is highly knowledgeable about U.S. immigration issues and is the author of the book "S'expatrier aux USA grâce aux visas d'entrepreneurs," which is soon to be translated into English. Sylvain is also a Certified Business Intermediary (CBI) by the International Business Brokers Association and is regularly consulted on issues related to this field. He is active on LinkedIn and Twitter, where he shares his insights and experiences with a wider audience.