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Tuesday, December 31, 2013

Employment Authorization for E-2 Spouses does not require EAD



In an unpublished decision, the Board of Immigration Appeals reversed the immigration judge's denial of an adjustment of status application for unauthorized employment under INA 245(c).  The Board found that the E-2 dependent spouse did not engage in unauthorized employment.  

The Board found that INA §214(e)(6) of the Act, 8 U.S. C. § 1184(e)(6), provides that in the case of an E-2 dependent spouse who accompanies or follows to join the E-2 principal alien the "Attorney General shall authorize the alien spouse to engage in employment and provide the spouse with an "employment authorized" endorsement or other appropriate work permit (Emphasis added). 

The Board ruled that the DHS employment authorization regulation, 8 C.F.R. § 274a.12(c)(2), entitled "Aliens who must apply for employment authorization," provides that an alien spouse or unmarried dependent son or daughter of a nonimmigrant treaty trader (E-1) must apply for work authorization. However, the regulation does not specifically state that the spouse of a treaty investor (E-2) must do the same.   Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013).