Can an E-2 principal bring their incapacitated adult son or daughter to the US?

The E-2 visa is an excellent option for nationals of an E-2 treaty country who want to start or develop a business in the United States. For more information on the E-2 visa requirements, see here.

One of the benefits of the E-2 visa is that the spouse and minor children (those under 21 years old) of the principal E-2 visa holder to receive E-2 dependent visas. An E-2 dependent spouse receives work authorization immediately upon entering the US in E-2S status (see our earlier post here for more information). The E-2 dependent child does not receive work authorization, but is allowed to enroll in school.

Under US immigration law, a child is defined as someone who is not married and is under 21 years old.

As a result, to qualify for an E-2 dependent visa, a son or daughter must be under 21 years old. They are ineligible for the E-2 dependent visa as soon as they turn 21.

If the son or daughter is within the US in E-2 dependent status, they lose that status as soon as they turn 21 years old. The son or daughter of the E-2 principal would need to depart or find an alternative visa or status – such as an F-1 student visa or an H-1B visa – before turning 21. If they do not, they risk accruing unlawful presence in the United States. See here for more information.

There are circumstances in which a son or daughter is unable to independently qualify for a visa once they turn 21. For example, they might be mentally or physically incapacitated, making them entirely dependent on the E-2 principal. In these circumstances, what options are available to them?

Fortunately, the law has anticipated the fact that some individuals might be dependent on the E-2 principal but may not be eligible for derivative status. These individuals may be eligible for a B-2 visa.

The Foreign Affairs Manual (FAM), at 9 FAM 402.2-4(B)(5), has more information on this option. That provision reads:

The B-2 classification is appropriate for applicants who are members of the household of another noncitizen in long-term nonimmigrant status, but who are not eligible for derivative status under that applicant’s visa classification. Such applicants include but are not limited to the following: cohabitating partners or elderly parents of temporary workers, students, foreign government officials or employees posted to the United States…

Indeed, as this provision states, a B-2 visa is not only available for the son or daughter of an E-2 principal that is ineligible for a dependent visa; it is also available for other members of the household, including elderly parents and cohabiting partners.

Typically, someone with a B-2 visa is only allowed to stay in the US for a brief period – usually six months or less. What if that is too short a period for the dependent son or daughter?

Fortunately, USCIS will oftentimes permit sons and daughters who are in the US on a B-2 visa in the care of an E-2 principal to apply for an receive extensions of status. The FAM anticipates this, stating:

If such individuals plan to stay in the United States for more than six months, [the consular officer] should advise them to ask DHS for a one-year stay when they apply for admission. If needed, they may thereafter apply for extensions of stay, in increments of up to six months, for the duration of the principal’s nonimmigrant status in the United States. 

The FAM notes that those seeking a B-2 visa in these circumstances may ask the consular officer to annotate the visa to indicate the purpose of travel and the length of stay, which the consular officer is encouraged to do.