On November 5, 2013, the Board of Immigration Appeals ("BIA") issued an opinion that found that an E-2 spouse remained eligible for permanent residence even though she had worked without first securing employment authorization. To be eligible to apply for permanent residence, an applicant must demonstrate that, among other things, he or she has not engaged in unauthorized employment. Under the immigration laws, E-2 spouses are authorized to work. The USCIS, however, has found that E-2 spouses can only do so once they first secure an employment authorization document ("EAD"). An Immigration Judge denied this E-2 spouse's application because she worked without an EAD.

The BIA reversed and found that the E-2 spouse did not engage in unauthorized employment that precluded her from green card eligibility. In this regard, BIA relied on Section 214(e)(6) of the Immigration and Nationalization Act, which states that "in the case of an alien spouse admitted under section 101(a)(15)(E) of the Act who is accompanying or following to join a principal alien admitted under the same section, the Attorney General shall authorize the alien spouse to engage in employment and provide the spouse with an ‘employment authorized' endorsement or other appropriate work permit." The BIA also relied upon the USCIS regulations, which appeared to be ambiguous on the issue. Since nothing in the regulations prohibited the E-2 spouse from working, the BIA concluded that she was eligible for permanent residence.

This is not an uncommon situation for spouses in E-2 or L-2 classification, which is why we note this decision. It is still strongly recommended that E-2 and L-2 spouses secure an EAD before working. Until this decision, however, the consequences of failing to do so seemed to be a period of unauthorized employment. Now we may see some light at the end of that tunnel for E-2 spouses. It remains to be seen what action, if any, the USCIS and Department of Homeland Security will take in response to this decision.