In the recent BIA decision (184439289-Do-Kyung-Lee-A089-047-352-BIA-Nov-5-2013), the Court ruled on a case involving the wife of an E-2 visa holder. The wife had sought to adjust status based on her employment and the labor certification process.
The BIA focused on the discrepancy in the regulations,stating:
“… the Act under section 214(e)(6) states that an E-2 spouse such as the lead respondent shall be authorized to engage in employment, but the regulations addressing aliens who must apply for employment authorization do not state that an E-2 spouse is included.”
and held that the Respondent did not engage in unauthorized employment. The BIA Court remanded the case to the Immigration Court.
In spite of this favorable decision, it is prudent for the spouse of an E-2 visa holder to formally apply for employment authorization prior to engaging in work and thus not run the risk their employment being found to be unauthorized.