Adding a Married Spouse to an E2 Visa as a Dependent with Working Rights

Comprehensive Guide for U.K. Nationals and Their Australian Spouses

Key Takeaways

Choice of Application Location: Applicants can choose between applying within the U.S. via USCIS or through consular processing in Melbourne, each with its own process, costs, and timelines.
Work Authorization: As an E2 dependent, the spouse is authorized to work in the U.S. upon approval of their status and can obtain an Employment Authorization Document (EAD) to simplify employment verification with employers.
Costs and Processing Times Vary: Applying within the U.S. may involve higher costs, especially with premium processing options, and longer processing times compared to consular processing, which is generally faster but may require travel and additional expenses.

Overview of E2 Dependent Visa for Spouses

The E2 visa allows investors from treaty countries to reside in the United States based on a substantial investment in a U.S. enterprise. Dependents, including spouses and children, can join the principal E2 visa holder under certain conditions. This guide outlines the process and costs involved in adding an Australian spouse to a U.K. national's E2 visa as a dependent with working rights, particularly when the spouse is currently in the U.S. on an E3 visa.

Application Options

1. Applying Within the U.S. (Adjustment of Status via USCIS)

US-based applicants can adjust their status from E3 to E2-dependent (E2S) status through the United States Citizenship and Immigration Services (USCIS). This process allows the spouse to remain in the U.S. while awaiting approval.

Process:

File Form I-539 (Application to Extend/Change Nonimmigrant Status):
- Submit Form I-539 to USCIS to change from E3 to E2S status.
- Include proof of the primary E2 holder’s status, such as the E2 visa and I-94 record.
- Provide evidence of the marital relationship, including a valid marriage certificate.
File Form I-765 (Application for Employment Authorization):
- File Form I-765 concurrently with Form I-539 to request work authorization.
- An Employment Authorization Document (EAD) can be obtained to simplify employment verification with employers.
Wait for USCIS Approval:
- Standard processing times range from 3 to 6 months.
- Upon approval, the spouse receives an EAD card, allowing legal employment in the U.S.

Costs:

Form I-539 filing fee: $370
Form I-765 filing fee: $410
Biometrics fee (if applicable): $85
Total Estimated Cost: Approximately $865

Additional Considerations:

Work Authorization: Although E2 spouses are authorized to work, obtaining an EAD simplifies the employment process.
Processing Time: Adjusting status within the U.S. generally takes longer than consular processing.
Travel Restrictions: Avoid international travel while the application is pending, unless an advance parole (Form I-131) is obtained.
Premium Processing: Available for an additional fee ($2,500) to expedite processing to approximately 15 days.

2. Applying from Outside the U.S. (Consular Processing in Melbourne)

Applicants can choose to apply for an E2-dependent visa through the U.S. Embassy in Melbourne. This option may result in faster processing and avoids the complexities of maintaining status in the U.S. during application.

Process:

Complete Form DS-160 (Online Nonimmigrant Visa Application):
- Fill out and submit Form DS-160 online.
- Pay the visa application fee of $205.
Schedule a Visa Interview:
- Book an appointment at the U.S. Embassy in Melbourne.
- Prepare required documents:
  - Proof of the primary E2 holder’s status, such as the E2 visa and I-797 approval notice.
  - Marriage certificate.
  - Evidence of the spouse’s intent to accompany the primary E2 holder.
Attend the Visa Interview:
- Appear before a consular officer for the interview.
- If approved, the E2S visa is stamped in the passport.
Travel to the U.S. and Obtain Work Authorization:
- Upon entry to the U.S., the spouse is authorized to work as an E2 dependent.
- Apply for a Social Security Number (SSN) to facilitate employment.

Costs:

DS-160 visa application fee: $205
Visa issuance fee: Varies by nationality; check with the U.S. Embassy.
Travel expenses: Costs associated with traveling to Melbourne for the interview.
Total Estimated Cost: Starting at $205, plus additional expenses if any.

Additional Considerations:

Processing Time: Typically 2-4 weeks for application review, plus 3-5 business days for passport return.
Key Benefits: Faster processing compared to adjustment of status, and clear entry status as E2 dependent.
Challenges: Requires travel to Melbourne, which may involve additional costs and logistical planning.

Comparison of Application Options

Aspect	In U.S. (USCIS)	Out of U.S. (Melbourne Consulate)
Application Method	Form I-539 and Form I-765	Form DS-160 and Consular Interview
Costs	$370 + $410 + $85 = $865 (plus optional premium processing: $2,500)	$205+ (visa issuance fee varies) + travel expenses
Processing Time	3–6 months (15 days with premium processing)	2–4 weeks for application review + 3–5 days for passport return
Key Benefits	Remain in the U.S. without traveling abroad	Faster processing and secure clear E2 dependent status upon entry
Challenges	Longer processing times; potential status issues if timing overlaps or travel is needed	Requires travel to Melbourne; additional travel-related costs

General Requirements for Both Options

Proof of Relationship: Valid marriage certificate.
Supporting Documents:
- Primary E2 holder's visa details and proof of business eligibility.
- I-94 record confirming current U.S. status.
- Australian spouse's current visa details and intent to switch to E2-dependent status.
Legal Assistance (Optional): Hiring an immigration attorney can cost between $1,000–$5,000, ensuring correct documentation and minimizing risk of delays or rejections.

Additional Considerations

If the Australian spouse’s E3 visa provides current working rights, transitioning to E2-dependent might cause temporary disruption unless expedited processing is chosen.
The E2 visa allows for extended renewals, provided the primary visa holder maintains a substantial business investment in the U.S. and continues meeting E2 criteria.
Changing from E3 to E2 is mandatory if the spouse chooses to proceed with E2-dependent status.
Maintaining compliance with U.S. immigration laws during the transition is crucial to avoid potential status issues.

Recap and Conclusion

Adding an Australian spouse to a U.K. national's E2 visa as a dependent with working rights involves careful consideration of application locations—within the U.S. via USCIS or through consular processing in Melbourne. Each option presents its own set of processes, costs, and timelines, with in-country applications typically involving higher fees and longer processing periods, but allowing the spouse to remain in the U.S. while awaiting approval. Consular processing, while potentially faster and more straightforward, requires travel and additional expenses.

Ultimately, the decision depends on the spouse’s current circumstances, urgency of obtaining work authorization, and willingness to travel. Ensuring all required documentation is meticulously prepared and considering legal assistance can enhance the chances of a smooth and successful visa application process.

Adding a Married Spouse to an E2 Visa as a Dependent with Working Rights

Comprehensive Guide for U.K. Nationals and Their Australian Spouses

Key Takeaways

Overview of E2 Dependent Visa for Spouses

Application Options

1. Applying Within the U.S. (Adjustment of Status via USCIS)

Process:

Costs:

Additional Considerations:

2. Applying from Outside the U.S. (Consular Processing in Melbourne)

Process:

Costs:

Additional Considerations:

Comparison of Application Options

General Requirements for Both Options

Additional Considerations

Recap and Conclusion

References