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Are the visa validity period and reciprocity fees the same for both the principal E-2 visa applicant and their dependent spouse and children?

By July 5, 2022October 16th, 2023E-2 Visa
A happy family of 3 smiling next to some questions marks

The E-2 investor and E-2 employee visas can be excellent options for nationals of E-2 treaty countries who want to build a business in the United States, or to work in the United States for a company that is a registered E-2 business. To learn more about the E-2 employee visa and its requirements, see here; for the E-2 investor requirements, please see here. To learn more about the E-2 business registration process, please see our earlier post here.

What benefits do the dependents (spouse and children) of the E-2 investor or E-2 employee receive?

In addition to often being the ideal visa option for entrepreneurs who want to start or grow a business in the United States – whether they have a startup, are opening a franchise, or are buying an existing business, the E-2 visa can be issued for up to 5 years, and can be renewed indefinitely. Another significant benefit of the E-2 visa is that the dependent spouse and children of the principal E-2 investor or E-2 employee also receive benefits. Specifically, the spouse of the E-2 principal can work and study in the United States, and the children of the E-2 principal can enroll in school.

As of January 2022, the spouse of a principal E-2 visa holder (whether an investor or an employee) receives work authorization automatically as part of their status. This means that they no longer need to apply for a separate work permit upon their arrival in the United States. For more information on this important update, please see our earlier post here. As of April 2022, the U.S. Department of State’s Foreign Affairs Manual (FAM), the Department’s primary directive for consular officers, explicitly acknowledges this important benefit for E-2 spouses at 9 FAM 402.9-9(e).

Must the E-2 dependent spouse and children pay the visa reciprocity fee?

The reciprocity fee differs from country to country, and is listed on the U.S. Department of State’s website here. It used to be the case that the dependent spouse and children were required to each pay the same reciprocity fee as the principal E-2 investor or E-2 employee. As of May 1, 2023, there was a significant change to this policy. See our blog post on this important update here.

Under the new policy outlined in 9 FAM 402.9-9(a), the dependent spouse and children will only pay the same reciprocity fee as the principal E-2 investor or E-2 employee if the dependent spouse and children have the same nationality as the principal E-2 applicant or if they have a nationality of a country that is not an E treaty country. For example, if the principal is Canadian and the spouse and children have passports from India, which is not an E-2 treaty country, they would all pay the same fee.

If the dependent spouse and children have a different nationality than the principal E applicant but their nationality is from an E treaty country, they must now pay the reciprocity fee for their country of nationality, rather than the country of the principal E applicant. For example, if the principal E-2 applicant is a Canadian national and their spouse is a Spanish national, the principal applicant would pay the E-2 reciprocity fee for Canadians, which is $40, and the spouse would pay the E-2 reciprocity fee for Spanish nationals, which is $234.

While some E-2 countries have no reciprocity fee, others, such as Australia, have a substantial reciprocity fee. In the case of Australia, if all family members are Australian nationals, or nationals of a country that does not have an E-2 treaty, then each family member – the principal E-2 visa applicant, their spouse, and each of their children – must pay the reciprocity fee of $3,574. For a family of four, this additional fee of more than $14,000 is significant for many applicants.

For more information on the reciprocity fee, please visit our earlier post on the subject here.

Are the visa validity period and other limitations on the principal applicant’s E-2 visa the same for their dependent spouse and children?

It used to be the case that consular officers were specifically instructed to grant the spouse and children of the principal E-visa applicant the same visa validity period and number of entries. As of May 1, 2023, there was a change to the FAM. The FAM now states that the spouse and children will only receive the same visa validity period and number of entries if they have the same nationality as the principal E-2 applicant or they are nationals of a country that does not have an E-2 treaty. If the spouse and children are nationals of an E-2 treaty country that is different than the principal E-2 applicant, the visa validity period and number of entries will be based on the reciprocity schedule for the spouse and children’s country of nationality. For example, if the principal E-2 applicant is Canadian and the spouse is Polish, the principal applicant would get a five year visa, because that is what is permitted for Canadian nationals, but the spouse would only be eligible for a one year visa, because that is the maximum visa validity for E-2s for Polish nationals. One other thing to note is that the dependent visas will not be granted for longer than the E-2 principal applicant, so if the E-2 investor was Polish and the spouse was Canadian, the spouse would only get the visa for one year.

The “reciprocity arrangement” mentioned in the FAM is similar to the reciprocity fee – for each country, the United States has determined a specific visa validity period that ranges from three months to five years. The visa validity period determined by the reciprocity arrangement, like the reciprocity fee, can be found on the U.S. Department of State’s website here. For more information on how the reciprocity arrangement affects the visa validity period, please see our earlier post on the topic here.

It is important to remember that the principal E-2 applicant and each of their dependents will each receive a separate Form I-94 upon each entry to the United States. The Form I-94 – not the visa validity period – controls the length of time that each individual can remain in the United States, and this period of time could differ for each individual. It is critical, therefore, that each individual check their Form I-94 expiration date upon each entry to the United States. They can do so by visiting the CBP website here and clicking “Get Most Recent I-94” at the top of the page.

Updated on 10/5/2023 based on Changes to the Foreign Affairs Manual:

Since this post was drafted, the Foreign Affairs Manual (FAM) has been updated.  The specific references to dependents obtaining a visa based on the Primary’s change of status approval have been removed from the E-2 part of the FAM.  As such, the E-2 section is now silent regarding whether a dependent can obtain a visa from a Consulate when the primary has obtained an E-2 change of status approval.  There is another section of the FAM that supports dependents being able to obtain a visa in this scenario.  (Please see below). While this section implies that obtaining a visa for the dependents is possible, we have not seen it function regularly in practice.  There is another big change.  If a dependent has a passport from a Treaty country, the visa can only be issued based on the reciprocity of the dependent’s country. 

9 FAM 402.1-6 Issuance of Nonimmigrant Visas (NIV) to Spouses and/or Children When Principal is in Status but Has No Visa

Derivative beneficiaries are entitled to apply for visas to follow and/or join principals who are maintaining status in the United States, even when the principal was never issued a visa in the classification being sought by the dependent.  Take, for instance, a world-class soccer player, who changes their status from F-1 to O-1.  The spouse and/or children are entitled to apply for nonimmigrant O-3 visas.  Typical documentation for establishing entitlement to visas in such an instance might include marriage and birth certificates for the spouse and dependent(s), a copy of the principal beneficiary’s approval notice, and any Form I-797, Notice of Action notices relating to the dependents’ own change of status filings.  Another example would be a foreign national who entered the United States on a B-1 visa and subsequently changed status to F-1.  The spouse and/or child of the F-1 would be entitled to seek F-2 visas.  In such cases, the dependent would need to present a properly endorsed Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status – for Academic and Language Students, as evidence that the principal is enrolled, or will be enrolled within 60 days, in a full course of study or is in approved practical training.

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