The Foreign Affairs Manual (FAM) is the authoritative resource that explains the policies and procedures used by the U.S. Department of State when carrying out responsibilities such as U.S. visa processing. The Department of State periodically updates this document as changes are made to policies and procedures. A recent change made in May 2023 is notable for the impact it has on visa issuance and reciprocity fees for E-2 dependent spouses and children.
Visa Issuance & Reciprocity Fees
The length of time a visa can be issued for and the reciprocity fees that must be paid upon visa issuance are based on the visa applicant’s country of nationality. For example, a national of Canada is eligible to receive a 5-year E-2 visa and must pay a reciprocity fee of $40 USD. As another example, a national of Australia is eligible to receive a 4-year E-2 visa and must pay a reciprocity fee of $3,574 USD.
Under the previous policy, the rule was that E-2 dependent spouses and children would receive visas that were issued for the same length of time as the principal applicant. Additionally, dependents were required to pay the same reciprocity fees as the principal applicant. For example, if a Canadian national applied for an E-2 investor visa and their spouse was an Australian national, the spouse would be eligible to receive a 5-year E-2 spousal visa and would only pay a reciprocity fee of $40 USD since that is the visa validity and reciprocity fee for Canadian nationals.
The previous language from the FAM is copied below:
b. Spouses and Children: To establish qualification for E classification as the spouse or child of an E applicant, you may accept whatever reasonable evidence is persuasive to establish the required qualifying relationship. The presentation of a certified copy of a marriage or birth certificate is not mandatory if you are otherwise satisfied that the necessary relationship exists. The spouse and children of an E visa applicant receive the same visa validity and number of entries, and are required to pay the same reciprocity fee, if applicable, as the principal applicant. If the principal applicant’s visa is limited in validity/entries by special processing, the visa for the derivatives should be limited and not exceed the period of validity or number of entries of the principal, except where the principal has changed status domestically and has not been issued a visa – at which time the visa should be issued based on the reciprocity arrangement that exists with the country of the principal applicant. (emphasis added)
As of this writing in May 2023, the FAM has been updated with the new policy copied below. As indicated in the language below, the Consulates will now need to look at whether the E-2 dependent is a national of an E-2 treaty country and if they are, the visa validity and reciprocity fee will be based on the dependents’ country of nationality. If the E-2 dependent is not a national of a treaty country, the visa validity and reciprocity fee will be the same as the principal applicant. One caveat is that the dependent cannot be granted an E-2 visa that is valid for longer than the principal applicant.
We can look at a few examples to see how this policy will work in practice:
- A Canadian national applies for an E-2 investor visa. Their spouse only has an Australian passport and applies for an E-2 spousal visa. Previously, the spouse would be eligible for a 5-year visa and would pay a reciprocity fee of $40 USD. However, under this new policy the spouse will only be issued a 4-year visa and will have to pay the higher reciprocity fee of $3,574 that applies for Australian nationals.
- A national of Bangladesh applies for an E-2 investor visa. Their spouse only has a Canadian passport and applies for an E-2 spousal visa. Nationals of Bangladesh are eligible to receive E-2 visas that are valid for only 3 months. As noted above, dependents cannot be granted the visa for longer than the principal applicant. That means in this case, the E-2 investor and E-2 spouse will each receive E-2 visas that are valid for 3 months. The E-2 spouse will also have to pay the $40 USD reciprocity fee that applies to Canadians.
- A national of Spain applies for an E-2 investor visa. Their spouse only has a passport from India. In this case, since the spouse is not a national of an E-2 treaty country, the spouse will be granted the E-2 visa for five years, since that is the visa validity for Spanish nationals and will be required to pay the same reciprocity fee as the principal applicant.
The current language from the FAM as of May 2023 is copied below:
a. Entitled to Derivative Status: The spouse and children of an E visa applicant who are accompanying or following to join the principal E visa applicant are entitled to derivative status in the same classification as the principal. The nationality of the spouse and children of an E visa principal may not be material – see guidance below on derivatives of treaty countries and non-treaty countries. Like principal E visa applicants, the spouse and children are also subject to INA 214(b). To establish qualification for E classification as the spouse or child of an E principal applicant, you may accept whatever reasonable evidence is persuasive to establish the required qualifying relationship. The presentation of a certified copy of a marriage or birth certificate is not mandatory if you are otherwise satisfied that the necessary relationship exists.
(1) Derivatives of treaty countries: The spouse and/or children of an E visa principal who possess the nationality of a treaty country should be issued visas valid for the maximum validity authorized by the reciprocity schedule of the derivative applicant’s nationality, or for the length of the principal’s visa and/or authorized stay, whichever is less. The reciprocity fees are also governed by the reciprocity schedule for fees of the derivative’s nationality.
(2) Derivatives of non-treaty countries: Non-treaty country spouses and children are also entitled to derivative classification and may have their visas issued in the non-treaty country passport. However, since only treaty country reciprocity schedules provide data for E visas, the number of entries, fees and validity for non-treaty country applicants must be based on the reciprocity schedule of the principal applicant.
As demonstrated by the examples above, this updated policy is more complicated than the prior policy and may lead to confusion or errors at the Consulate. Applicants should discuss any questions with their immigration attorney to ensure they understand how long the visa should be issued for and what they are required to pay under this new policy.
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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