Form I-9 for E-2 employees: treaty investor staff, the investor's own form, subsidiaries, two-year readmissions and E-2S spouses

An E-2 employee, a person who works for a treaty investor or a treaty investor's company and shares its nationality, completes Form I-9 like other employer-specific nonimmigrants: in Section 1 they check "An alien authorized to work" and enter the end date on their Form I-94, and in Section 2 the employer usually records their unexpired foreign passport and the I-94 as one List A document. As of November 2026, five E-2 rules change the routine: the investor completes Form I-9 only if they are an employee of a separate business entity; an E-2 employee may work only for the treaty-qualifying company, with a limited allowance for its parent and subsidiaries; each return from a trip abroad usually brings a new two-year I-94, so reverification dates move; the 240-day extension applies only to extensions filed with USCIS; and E-2S spouses may work on their I-94, while children may not.

The Australian E-3 category, which shares the E label but not these rules, is in Form I-9 for E-3 and H-1B1 workers. Moves inside a corporate group are covered in Form I-9 in mergers and acquisitions and, for intracompany transferees, Form I-9 for L-1 workers; Supplement B steps are in I-9 reverification.

Who in an E-2 company completes Form I-9?

M-274 Section 7.9.1 says: "Other than those who are self-employed, E nonimmigrants who work in the U.S. are required to complete Form I-9." Its example is "an E-2 treaty investor who is not working for an employer," who does not complete one but must complete Form I-9 for their employees, "which includes employees in E-2 nonimmigrant status." Section 7.7 adds that E-1 and E-2 individuals "may be employers or employees" and that employers need Forms I-9 only for employees. The usual cases:

How do you complete Form I-9 for a new E-2 employee?

1. Check the role against the approval. 8 CFR 214.2(e)(8)(i) says a treaty employee "may engage only in employment which is consistent with the terms and conditions of his or her status." The job you are hiring for should be the one the visa or USCIS approval was based on.
2. Section 1. M-274 7.9.1 says the employee "should check, 'An alien authorized to work' and enter their Form I-94 end date on the expiration date line." They also give a USCIS Number or A-Number, the I-94 admission number, or a foreign passport number and country.
3. Section 2. "The employee's Form I-94 and unexpired foreign passport together are an acceptable List A document." Record the passport in the first List A fields and the I-94, with its end date, in the second.
4. Let the employee choose. An I-94 issued to a work-authorized nonimmigrant is a List C #7 document under M-274 13.3, so a List B document plus the I-94 also works. The instructions say the employer "cannot specify which documentation an employee may present." The E-2 visa in the passport, a consular approval or a Form I-797 is not something you need for Section 2.
5. Timing. Section 1 by the first day of employment; Section 2 within three business days after it.
6. Diary the I-94 end date. It may be shorter than two years: 8 CFR 214.2(e)(19)(iii) bars admission in E status "for a period of time extending more than 6 months beyond the expiration date of the alien's passport."

Who can an E-2 employee work for?

8 CFR 274a.12(b)(5) says a person in E-1 or E-2 status "may be employed only by the treaty-qualifying company through which the alien attained the status." Three refinements in 214.2(e)(8):

• Parent and subsidiaries. Treaty employees may work for the parent treaty enterprise or any of its subsidiaries without it counting as a substantive change, if, when E status was determined, the evidence showed the entities, the parent-subsidiary relationship and that the subsidiary "independently qualifies as a treaty organization," and the work needs "executive, supervisory, or essential skills."
• Substantive changes. USCIS approval is required for "a fundamental change in the employing entity's basic characteristics, such as a merger, acquisition, or sale of the division where the alien is employed." The employee may instead obtain a new visa reflecting the change and be readmitted.
• New employment waits. When USCIS approves a change, "the alien is not authorized to begin the new employment until the application is approved." There is no E-2 equivalent of the H-1B start on filing.

The immigration rule and the Form I-9 rule are separate. Even when work for a subsidiary is allowed, a separately incorporated subsidiary that becomes the employer is generally a different employer for Form I-9, so plan on a new form unless counsel confirms the move fits the continuing-employment or successor rules in 8 CFR 274a.2(b)(1)(viii).

How do readmissions and extensions change reverification?

USCIS's E-2 page says qualified employees get "a maximum initial stay of two years," extensions "in increments of up to two years each," and "no limit to the number of extensions." It adds that an E-2 nonimmigrant returning from abroad "may generally be granted... an automatic two-year period of readmission." So the I-94 end date you recorded can change every time the employee travels. Two routes, two treatments:

• Readmission after travel. The employee brings back a new I-94. Record it on Supplement B by the old end date; there is no 240-day period on this route, so if the new I-94 is not in hand by then, the employee needs other documents.
• Extension filed in the United States. If you timely file Form I-129, M-274 7.7 lists E-2 among the categories authorized "to continue working for up to 240 days while USCIS processes the petition, or until USCIS makes a decision." 8 CFR 274a.12(b)(20) covers class (b)(5) and limits it to "the same employer." Keep the I-129, fee proof and mailing proof, then the I-797C, with the Form I-9; write "240-day Ext." and the filing date in Additional Information when the old authorization ends; record the new I-94 on Supplement B on approval.

Two limits to plan around. Employees with special qualifications responsible for start-up operations are presumed able to finish within two years and, "Absent special circumstances," will not get an extension (214.2(e)(20)(ii)). And if employment ends, 8 CFR 214.1(l)(2) currently allows up to 60 days in status without work; DHS proposed removing that grace period on September 11, 2026 (91 FR 57807), naming E-2 among the classes affected, and the proposal is not final.

What do E-2S spouses and E-2 children show?

The statute, 8 U.S.C. 1184(e)(2), says DHS "shall authorize the alien spouse to engage in employment," and USCIS's E-2 page says spouses "in valid E-2 or E-2S status are considered employment authorized incident to status." M-274 Section 7.9.1 sets out the documents:

• I-94 with E-2S, issued on or after January 30, 2022: a List C #7 document, with a List B identity document; the spouse enters the I-94 end date in Section 1.
• I-94 issued before January 30, 2022 showing E-2: the I-94 plus the Form I-797A notice USCIS sent in 2022. Under List C enter "Form I-94," the admission number and the end date; in Additional Information enter "Form I-797A" and its receipt number.
• An EAD: optional, and subject to the renewal rules explained in Form I-9 for H-4 and L-2 spouses.
• A different end date from the principal. USCIS notes that a principal's new two-year readmission does not apply to family members unless they travel with the principal or return within the new period, so the spouse's own I-94 date governs their reverification.
• CNMI exceptions. Spouses of E-2 CNMI investors need an EAD under 274a.12(c)(12) and may work only in the CNMI; spouses of CNMI investors who qualified through a Foreign Retiree Investment Certificate are not eligible.

Children are not covered: 274a.12(b)(5) says E-2 work authorization does not extend to the principal's dependents beyond the exceptions it lists, and the spouse statute covers spouses only.

What should recruiters and hiring managers avoid?

• Deciding E-2 eligibility in a screen. Nationality and "executive or supervisory" or "special qualifications" are judgments for counsel on a specific filing. Before an offer, ask the two standard work authorization questions; see work authorization questions in interviews.
• Lending staff across the group. Work at a sister company that was not documented when E-2 status was granted can fall outside the employee's status.
• Ignoring a deal. A merger, acquisition or sale of the division can be a substantive change that needs USCIS approval before the employee keeps working on the same basis.
• Rejecting short dates. Employers "should not reject acceptable documentation due to a future expiration date."

An E-2 Form I-9 checklist

• Investor: Form I-9 only if an employee of the business entity.
• Job matches the role the E-2 status was approved for.
• Section 1 date: the I-94 end date.
• Passport plus I-94, a List B document plus the I-94, or any other valid choice.
• New I-94 after each trip recorded on Supplement B by the old end date.
• "240-day Ext." only for extensions filed with USCIS on Form I-129.
• Legal entity and the subsidiary allowance checked before any internal move; deals reviewed with counsel.
• E-2S spouses: I-94 plus List B, or the pre-2022 I-94 with Form I-797A; children need their own basis to work.