I am an E-2 spouse eligible for a Social Security number, but the Social Security office rejects my application. What can I do?

On November 12, 2021, USCIS announced in a policy alert that dependent spouses of E- and L-visa holders are authorized to work pursuant to their status, and therefore no longer need to apply for a separate work permit (also called an Employment Authorization Document, or EAD). Starting on January 30, 2022, these E and L nonimmigrant spouses were given a new designation on their I-94 upon entering the U.S. This designation consists of the principal visa holder’s status followed by an “S” – for example, “E1S” for the spouse of an E-1 visa holder, “E2S” for the spouse of an E-2 visa holder, and so on. With this new designation, E and L nonimmigrant spouses are able to begin working upon entering the U.S. For more information on this positive change, please see our earlier posts on the subject here and here.

With the ability to work upon entering the U.S., these spouses are also eligible to apply for a Social Security number. Unfortunately, we have received reports that some local Social Security Administration (SSA) offices are erroneously refusing to issue Social Security numbers to these applicants.

In this post, we explore this further, and present several options to navigate and address the SSA’s error.

There are a number of reasons why an E or L nonimmigrant spouse might want a Social Security number. Among other things, a Social Security number is used by employers to report a worker’s wages to the Internal Revenue Service (IRS) for tax purposes, and to determine a person’s eligibility for Social Security benefits.

While employers are not prohibited from hiring or compensating a worker based solely on the fact that the worker does not have a Social Security number, having one can make the process of getting a job and starting work easier.

An E or L nonimmigrant spouse would typically apply for a Social Security number by visiting their local Social Security Administration (SSA) office. Local SSA offices can be searched by zip code here. The E or L nonimmigrant spouse would complete an application for a Social Security card, and would bring to the local SSA office proof of their identity, age, and authorization to work. This can include an unexpired passport and a copy of their most recent Form I-94 Arrival/Departure Record showing their status as “E1S,” “E2S,” “E3S,” “L1S,” or “L2S.” The SSA has published a helpful guide here for foreign workers seeking a Social Security number.

Please note that you can check your I-94 status by clicking “Get Most Recent I-94” on the CBP website here. If your I-94 shows an incorrect status – such as “E2” rather than “E2S” for an E-2 dependent spouse – it is necessary to request that the I-94 be corrected. Please see our earlier post here for details on how to request that the I-94 be corrected.

In case of a rejection, it is always important to learn from the officer why the application was not accepted. The issue could be one that is easily fixed, or that has nothing to do with the applicant’s underlying status.

This being said, we have received a number of reports saying that local SSA offices are refusing to issue Social Security numbers to eligible E or L nonimmigrant spouses. It appears that some SSA employees have not been properly trained or otherwise made aware of the USCIS update in January 2022 that made E and L nonimmigrant spouses eligible to work. This results in the troubling situation in which an applicant is told flatly that they do not qualify for a Social Security number, even though they clearly do.

For those E or L nonimmigrant spouses who find themselves in this frustrating situation, below we list several options for how to move forward.

In addition to completing an application for a Social Security card and providing the required documentation showing their identity, age, and authorization to work, the applicant should also bring to the local office documentation that demonstrates that E and L nonimmigrant spouses are eligible for Social Security numbers.

Specifically, the SSA’s Program Operations Manual System (POMS) (which can be found here) explicitly states: “Effective November 2021, USCIS granted E-1, E-2, E-3, L-1, and L-2 spouses work authorization incident to status.” It then lists those in E1S, E2S, E3S, L1S, and L2S status as being authorized to work without an Employment Authorization Document, or EAD. POMS RM 10211.420 (“Employment Authorization for Non-Immigrants”) states that the SSA’s policy is to characterize these nonimmigrant spouses as “non-immigrants authorized to work in the U.S. without specific authorization from DHS.” The policy goes on to say that “The alien’s I-94 showing one of the following COAs has employment authorization unless otherwise noted. The I-94 will not have the DHS employment authorization stamp and the alien will generally not have an EAD.”

For some SSA officers who refuse to issue a Social Security number to an E or L nonimmigrant spouse, being made aware of the SSA’s policy may be sufficient to convince them that the applicant is indeed eligible for a Social Security number. However, this is not always the case.

Unfortunately, it is sometimes necessary to escalate the matter to a supervisor. An applicant should always feel empowered to ask for an officer’s supervisor if the officer fails to adhere to the SSA’s policy regarding E or L spouses. Keep in mind that there is a chance that the supervisor is also not properly trained on the new policy regarding E and L spouses – in which case it might be helpful to again provide the guidance made available on POMS, which is described above and can be found here.

If the problem has been escalated to a supervisor at the SSA and they continue to insist that the E or L spouse is ineligible for a Social Security number, it may be helpful to request assistance from a local member of Congress. The member of Congress (or their staff) can file a congressional inquiry to learn more about the situation and attempt to move the process forward.

Typically, this involves learning who the local member of Congress is, and contacting their office through their website, email, or phone. They oftentimes have a specific staff member assigned to follow up on constituent inquiries. A simple inquiry by a member of Congress can be enough to nudge an eligible application for a Social Security number forward.

For more information, we have a more detailed blog post on the topic of congressional inquiries here.

If you have tried the above steps and the SSA continues to refuse to issue a Social Security number to an eligible individual, it could be worth suing the Social Security Administration. This is done by filing a mandamus lawsuit in federal court and asking a judge to order the SSA to do its job and issue the Social Security number. While not always the case, these lawsuits tend to settle early, since it is much easier for the government to simply do its job than to litigate a case in court.

For more information on mandamus lawsuits, please see our earlier post here.