Even though someone in valid E-2 dependent spouse status (E-2S status) does not need separate work authorization such as a Social Security card or employment authorization document (EAD), it is unfortunately not uncommon for U.S. employers to ask for it. Requiring separate work authorization is not only unnecessary, but can also expose the employer to claims of employment discrimination by requiring documentation that is inconsistent with the Form I-9.
In this post, we share what employers should know when determining whether someone in E-2 dependent spouse status is authorized to work.
The Social Security Administrating makes clear that those in valid E-2 dependent spouse status are authorized to work without separate authorization.
In its Program Operations Manual System (POMS), the Social Security Administration (the agency that, among other things, issues Social Security cards) provides helpful information regarding which individuals need separate work authorization (such as a Social Security card or an employment authorization document (EAD)), and which do not.
In section RM 10211.420(G)(1) of the POMS (found here), the government makes clear that those who are in valid E-2 dependent spouse status (E-2S) do not need separate work authorization and are eligible to begin working immediately upon entry in E-2S status.
Specifically, at section G.1, titled “Aliens Employment-Authorized Without Separate DHS Authorization,” the POMS provides a chart that “lists, by COA [class of admission] code, non-immigrants authorized to work in the U.S. without separate authorization from DHS.” The POMS goes on to state that “The alien’s I-94 showing one of the following COAs has employment authorization unless otherwise noted. Form I-94 will not have the DHS employment authorization stamp and the alien may not have an EAD.” (Bold text appears in the original).
Those in E-2S status (the spouse of the principal E-2 visa holder) are listed on the chart. This means that those who are in E-2S status are authorized to work in the U.S. with their I-94 showing that they are in valid E-2S status. The I-94 can be found online by visiting the CBP website here and clicking “Get most recent I-94.”
The Form I-9 Employment Eligibility Verification does not require that someone in valid E-2S status have separate authorization.
Employers are required to complete the Form I-9 Employment Eligibility Verification for all individuals they plan to hire.
List A on page 2 of the Form I-9 (here), states that one of the acceptable documents that establishes both the identity and employment authorization for someone “temporarily authorized to work for a specific employer because of his or her status” is their foreign passport and their Form I-94. The Form I-94 should have the same name as the name in the passport, should show that they are in E-2S status, and should not have expired.
What are the risks if an employer chooses to require documentation beyond what is listed in the Form I-9?
When completing the Form I-9, the employee is entitled to provide any of the listed documents that they choose. The employer must defer to the employee’s choice and, as long as the documents the employee provides are acceptable, the employer cannot require different or additional documents than the employee chooses to provide. The employer also cannot refuse to accept documents provided by the employee that appear to be genuine and appear to identify the employee.
Regarding Section 1, which the employee must complete, the employer cannot require that the employee provide any documents to prove the information the employee provides in that section.
The employer should be careful to comply with these requirements – failure to do so could cause the employer to be liable for discrimination against the employee. For more information on the employer’s responsibilities when completing the I-9, see here.
Can someone in E-2S status nonetheless apply for a Social Security card if they would like to?
Yes, someone who has valid E-2S status can apply for a Social Security card if they would like to do so. Doing so may be helpful in some situations, such as when the individual files their taxes.
To do so, they may visit a Social Security Administration local office. Please find more information on applying for a Social Security card here and here.
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