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Updated on 06.05.2024

Visa question of the month - Residence status of spouses when changing the US visa

Your question: An employee is in the USA on an E-2 visa. Her husband has an E-2 "spouse" visa and a parallel EAD with which he works. Since our company no longer has an E registration, an L blanket visa has been applied for the employee. What happens to the husband's residence status?

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Bild von einem Ehepaar in den USA

Your question:

An employee of our company is currently in the USA on an E-2 visa. Her husband has an E-2 "spouse" visa and a parallel EAD with which he works. Since our company no longer has an E registration, an L blanket visa has already been applied for the employee when she was on a business trip in Germany. What happens to the residence status of her husband who is still in the United States?

Our answer:

In principle, the procedure is the same as for the E visa. This means that the spouse can also receive a derived L-2 visa on the basis of the main applicant for the L blanket visa. There are therefore two options for the spouse:

  1. He travels out of the United States and applies for an L-2 visa during a consular interview (e.g. at the US consulates or the US embassy in the home country). He then enters the country with this US visa and receives a new L-2 status at the US border.
  2. He does not leave the country, but must then immediately submit an application for change of status within the USA. This is because he is currently still in the United States under E-2 status. Since his wife - as the main applicant - no longer has a valid E-2 status (but L-1 from now on), the husband can no longer stay in the USA on the basis of E-2 status. The application is submitted to the relevant USCIS Service Center (U.S. Citizenship and Immigration Services) in the USA using application form I-539 and the relevant documents.
    Please note that this constellation is not unproblematic. Strictly speaking, the moment the wife leaves the country and receives a new visa (L blanket), the legal basis for the husband's residence (E-2) has expired. This means that even if a change of status application is filed immediately, the US immigration authority USCIS could, in the worst case, assume an unlawful presence (i.e. illegal residence). In this respect, we favor option 1.

If you opt for option 2, the husband may during this time not leave the United States, otherwise the application will be considered withdrawn. However, the spouse can continue to reside legally in the USA during the application process if the application was submitted on time. Upon approval of the change of status application, the spouse will receive a new I-94 form on which the new (L-2) status will be noted. The husband can then continue to reside in the USA until the end of the expiration date without leaving the USA.

Important: However, if the spouse leaves the country (whether during the procedure or after approval), he must first apply for the L-2 visa at the US consulate / US embassy (see option 1) during a personal interview in order to be able to re-enter the country.

Another - often unfortunately ignored - but extremely important point is the EAD issue. The employee already has an EAD (= Employment Authorization Document) on the basis of E-2 status. Spouses with L-2 status can also obtain an EAD. Unfortunately, however, it is not possible to simply continue using the existing EAD. In the course of the new L-2 status or the new L-2 visa, a new EAD (based on the L status) must be applied for for the husband. This can be done in two ways:

  1. The spouse leaves the United States, applies for the L-2 visa, enters the country, receives the L-2 status at the border and can then apply directly for a new EAD with the USCIS. Until the new EAD is available, the husband cannot work (not even with the "E-2 EAD" that may still be valid).
  2. The spouse applies for a change of status in the USA (option 2) and submits form I-765 (for the new EAD) at the same time as the I-539 form. Upon receipt of the new L-2 status, the employee receives a new EAD and can work with this document again.

Date:

Updated on 06.05.2024