Let’s analyze the following scenario: you came to the U.S. on a B-1 visa and filed a Change of Status application with USCIS asking to change your status to an E-2. Your spouse is currently outside the U.S. and would like to apply for an E-2 spousal visa rather than coming to the U.S. on a B-1/B-2 visa and changing status in the U.S. The question then arises: Can your spouse apply for an E-2 spousal visa if you as the principal applicant never got an E-2 visa at the Consulate?
The short answer is: yes.
The Foreign Affairs Manual states that beneficiaries who are following and/or joining the principal visa holders can be issued a visa even thought the principal applicant (you in the case above) was never issued a visa. One condition is that the principal applicant in the U.S. must be maintaining the non-immigrant visa status. In your case, that would mean that you have to be in the U.S. on an E-2 status and you are complying with the E-2 visa requirements.
What documents should your spouse bring to the Consulate?
Your spouse should bring the following documents to the Consulate:
- Marriage certificate (if you have children who would like to also apply for the E-2 dependent visa they should bring their birth certificates),
- Copy of your I-797A approval notice,
- Copy of your passport,
- Copy of your most recent I-94 form.
Your spouse should also visit the website of the Consulate where he/she will be applying for the visa/reach out to the Consulate to see if there are any additional documents he/she should bring to the interview.
Please read our blog post on whether you should file a change of status with USCIS or apply for an E-2 visa at a Consulate when you click here.
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