BIA Holds that E-2 Spouse Who Worked without an EAD is Still Eligible to Adjust Status

According to a recent unpublished decision by the Board of Immigration Appeals (BIA), Department of Homeland Security (DHS) regulations did not bar an E-2 dependent spouse who worked without first applying for and obtaining an employment authorization document from adjusting her status.

As a rationale for the holding, the BIA concluded that neither the pertinent statute nor the regulations set forth a procedure for the E-2 spouse to apply for work authorization, although they do specifically authorize such employment. The BIA concluded that this “apparent anomaly” required them to reverse an immigration judge's denial of an adjustment of status application for unauthorized employment under INA 245(c). To read the entire decision, go here.

Despite this decision, we recommend that E-2 spouses seeking employment in the U.S. proceed with caution and continue to consult with a qualified immigration attorney regarding this issue and whether it is advisable to obtain an employment authorization document before engaging in employment in the U.S.