7.9.1 E Nonimmigrant Status

The E category includes treaty traders (E-1), treaty investors (E-2), and certain nonimmigrant employees of such individuals (and their dependent spouses and children) who come to the U.S. under a treaty of commerce and navigation between the U.S. and their country of nationality. This category also includes Australian specialty occupation workers and their dependent spouses and children (E-3).

The nonimmigrant employee of a treaty trader is admitted in E-1 status, and the employee of a treaty investor is admitted in E-2 status. Certain E nonimmigrant spouses are employment authorized incident to status. As of January 30, 2022, with limited exceptions noted below, these spouses receive a Form I-94, Arrival/Departure Record with a Class of Admission (COA) of E-1S, E-2S or E-3S when they are admitted into the U.S. or if USCIS approves their application for extension or change of status as an E nonimmigrant spouse. Prior to January 30, 2022, these E nonimmigrant spouses received Forms I-94 with a COA of E-1, E-2, E-3, E-3D, or E-3R.

Other than those who are self-employed, E nonimmigrants who work in the U.S. are required to complete Form I-9. For example, an E-2 treaty investor who is not working for an employer is not required to complete a Form I-9 but is required to complete a Form I-9 for their employees, which includes employees in E-2 nonimmigrant status.

When completing Form I-9, the E nonimmigrant employee should check, "An alien authorized to work" and enter their Form I-94 end date on the expiration date line in Section 1. For Section 2, the employee's Form I-94 and unexpired foreign passport together are an acceptable List A document. Refer to the note below for those who must first obtain authorization and an EAD from USCIS before engaging in employment in the U.S.

Dependent Spouse of E-1, E-2 or E-3 Workers

In Section 1, employees with Forms I-94 with a COA of E-1S, E-2S, or E-3S should check "An alien authorized to work" and enter the Form I-94 end date on the expiration date line in Section 1. For Section 2, the employee's Form I-94 with E-1S, E-2S, or E-3S nonimmigrant status is acceptable evidence of employment authorization as a List C #7 document. They must also present a List B identity document.

If the Form I-94 was issued before Jan. 30, 2022, and shows E-1, E-2, E-3, E-3D, or E-3R COA, the employee's Form I-94 in combination with the Form I-797A, Notice of Action, indicating that USCIS identified the individual as a dependent spouse in one of the nonimmigrant classifications (E-1, E-2, E-3, E-3D, or E-3R) whose status renders the individual employment authorized incident to status, is acceptable as a List C #7 document. USCIS sent these Forms I-797A, Notices of Action, in 2022 to dependent spouses whose Forms I-94 were issued before Jan. 30, 2022.

If the employee presents List B and C documents such as a driver's license for List B and a Form I-94 admission record combined with the Form I-797A identifying the individual as a dependent spouse whose status of E-1, E-2, E-3, E-3D, or E-3R indicates employment authorization incident to status as described above, for List C, you should complete Section 2 as follows:

• Enter the employee's List B document information;
• Under List C, enter "Form I-94" as the document title;
• Enter the Form I-94 admission number as the document number;
• Enter the Form I-94 end date in the Expiration Date field; and
• In the Additional Information field, enter "Form I-797A" and its receipt number.

If the employee presents, in combination, a Form I-797A described above and Form I-94 to complete Supplement B, Reverification and Rehire, you should:

• Enter "Form I-94" as the document title;
• Provide the Form I-94 admission number as the document number;
• Enter the Form I-94 end date in the Expiration Date field; and
• In the Additional Information field, enter "Form I-797A" and its receipt number.

E nonimmigrant dependent spouses are employment authorized incident to their status. Such dependent spouses may choose to apply for a Form I-766, Employment Authorization Document (EAD) and present it as a List A document for Form I-9 completion but are not required to do so. Under certain circumstances, their EADs may be automatically extended. See Section 5.0 of the M-274 for more information.

Note: A Form I-94 from a spouse of a Long-Term Investor in the Commonwealth of the Northern Mariana Islands (E-2C), Dependent of Taipei Economic and Cultural Representative Office (TECRO)(E-1) or Taipei Economic and Cultural Offices (TECO) is not acceptable to show employment authorization. Instead, nonimmigrant spouses of TECRO and TECO E-1 principal nonimmigrants must apply for and obtain an EAD to be employment authorized per 8 CFR 274a.12(c)(2) and under 8 CFR 274a.12(c)(12) for E-2C spouses. Additionally, as noted in 8 CFR 214.2(e)(23)(x)(B), spouses of E-2 CNMI investors who obtained such status based upon a Foreign Retiree Investment Certificate are not eligible for work authorization.

For more information on treaty traders, treaty investors and Australian specialty workers, visit our Temporary Worker page or call our Employer, Business, Investor and School Services information line at 800-357-2099.