A recent unpublished Board of Immigration Appeals (BIA) decision has revived the discussion of whether spouses of E visa holders are required to apply for separate employment authorization in order to work lawfully in the United States.  Immigration lawyers have long debated whether the Immigration and Nationality Act (INA) and its regulations provide automatic work authorization to E-2 and L-2 spouses; or, if despite the language of the Act, Citizenship and Immigration Services (CIS) is correct in requiring that a separate application for employment authorization be approved in order for these individuals to be able to start working in the U.S.

The foreign national, the spouse of an E visa holder, in In the Matter of Do Kyung Lee, et al., was engaged in employment without an approved application for employment authorization.  The Immigration Judge denied her the opportunity to adjust her status to that of a lawful permanent resident, ruling that she engaged in unauthorized employment during her time as an E-2 spouse.

The foreign national appealed the Immigration Judge’s decision, arguing before the BIA that “nothing in the [INA] or regulations sets forth an application procedure or work authorization application requirement for E-2 spouses.”  The BIA agreed and confirmed that the law, in fact, states that E-2 spouses “shall” be authorized to engage in employment and it does not include a requirement that E-2 and L-2 spouses apply separately for approval of work authorization.

This decision suggests that E-2 and L-2 spouses can work lawfully “incident to status” and avoid spending the time and money involved in applying for separate employment authorization.  However, CIS has not made any policy changes as a result of this BIA decision, so an E-2 or L-2 spouse who chooses not to apply for employment authorization, or begins working prior to work authorization approval, is still at risk of being designated by CIS or an Immigration Judge as having worked without authorization.