E-2 Visa USA: What Your Partner Can Do with You in America

The E-2 visa is granted on the basis of a bilateral treaty between the USA and the applicant's home country. Many European countries have such treaties with the USA.

An applicant must:

• make a substantial investment in a US business,

• control and direct the business,

• and show that the business creates jobs or at least makes an economic contribution.

The E-2 visa is usually granted for two to five years and can be renewed.

Here is the especially attractive part: spouses and children under 21 can apply for an E-2 derivative visa. Spouses may work in the USA and children may go to school: a huge advantage.

US law gives spouses of E-2 principal applicants privileged treatment:

• Work authorization: spouses automatically get the right to work in the USA. Since November 2021, work authorization follows from their status itself (the "E-2S" annotation on the I-94); an Employment Authorization Document (EAD) can still be requested but is no longer required.

• Free choice of work: spouses are not tied to the investor's business and may work in any profession or for any employer.

• Right to stay: as long as the principal applicant's E-2 visa is valid, the spouse may stay in the country too.

For heterosexual couples, this is clear. But what about same-sex marriages?

Since the landmark rulings in United States v. Windsor (2013) and Obergefell v. Hodges (2015), marriage for same-sex couples has had full legal equality throughout the USA.

For E-2 visas, this means:

• A same-sex spouse is treated exactly like a heterosexual spouse.

• The marriage must have been legally valid, concluded either in the USA or in a country that recognizes same-sex marriage (such as Norway, Sweden, Denmark, Finland, the UK, Ireland or the Netherlands).

• US consulates do not judge personal views or morals; they look only at whether the marriage is legally valid.

In other words: a married same-sex couple from Europe can move to the USA together on an E-2 visa without any trouble. The investor applies for the principal visa and the spouse receives the derivative visa.

Things get harder for unmarried couples, whether heterosexual or homosexual.

In this context, US immigration law recognizes only marriage as the basis for a derivative visa. Other forms of partnership, such as:

• registered partnerships,

• cohabiting unmarried couples,

• "domestic partnerships" or "civil unions"

are not automatically recognized.

In practice, this means:

• An unmarried partner has no automatic right to an E-2 derivative visa.

• Even if you have lived together for many years, that is not enough in legal terms.

Yes, but only limited ones.

The US State Department has introduced a rule for so-called qualifying domestic partners: unmarried partners who can prove a "lasting, exclusive relationship".

In practice, some US consulates (including those in Germany) are cooperative and issue B-2 visas as a "dependent partner visa". However, these are:

• valid only for staying in the USA, not for working,

• and have to be renewed regularly.

So the partner may not work and can only come along. For many couples, that is impractical.

If you want to move to the USA as an unmarried couple, you still have options:

1. Your partner's own visa application
   Your partner can apply for their own E-2 visa, for example as a co-owner of the business if they invest as well.

2. Work visa
   Your partner can try to obtain their own work visa, such as an H-1B visa (heavily regulated) or an O-1 visa (for extraordinary ability).

3. Student visa (F-1)
   Studying in the USA can be an alternative. The F-1 visa also allows limited work through internships or Optional Practical Training (OPT).

4. B-2 partner status
   As described above, your partner can apply for a B-2 visa as a dependent partner. This is, however, not a permanent solution.

Let's say Ms. A and Ms. B have lived in a registered partnership for 10 years, which they converted into a marriage after the law changed in Germany.

• Ms. A invests $250,000 in a restaurant in Florida.

• She applies for an E-2 visa as the principal applicant.

• Ms. B submits the marriage certificate and applies for the derivative visa.

The result: both receive visas. With her E-2S status, Ms. B is automatically authorized to work and can take any job she likes in the US.

Mr. C and Mr. D have lived together for years but are not married. Mr. C wants to start an IT company in Texas and applies for an E-2 visa.

• Mr. C is granted the visa.

• Mr. D applies for a B-2 visa as his partner.

The result: Mr. D may move to the US with him but is not allowed to work. That makes building a life together considerably harder.

• Have your marriage certificate ready: if you are married, submit all documents as originals along with certified translations.

• Marriage as the solution: the same applies to same-sex couples as to heterosexual couples. Getting married is the simplest way to secure your rights of entry and residence.

• Think about a plan B: if you do not want to marry, consider whether your partner can file a visa application of their own.

• Tax aspects: spouses are taxed independently in the US. The fact that your spouse may work can bring tax opportunities (but also obligations).

For entrepreneurs from Europe, the E-2 visa is still one of the best ways to gain a foothold in the US. For married couples, whether same-sex or opposite-sex, the legal position is clearly positive. Your spouse gets a visa of their own, may work and can live freely.

For unmarried couples, however, things remain complicated. They either have to marry or turn to alternatives, such as a separate visa application, a work visa or a student visa.

Same-sex couples in particular benefit today from the fact that the US recognizes their marriages without restriction. That is real progress, and ten years ago it could not be taken for granted.

If you are planning to move to the US on an E-2 visa and have questions about your family situation, we recommend a personal consultation. You will find the basics on our page about the E-2 investor visa and in the detailed chapter Spouses and children; more articles are available under News.

• What evidence does the consulate require?

• Is your marriage recognized in the US?

• What alternatives are there if you do not want to marry?

• What are the tax consequences for both partners?

Mount Bonnell Advisors supports you every step of the way with all questions about the E-2 visa and your family's move to the US.

Consultation & implementation

If you'd like to find out what this means for your own situation, the best step is to book a consultation.