SSA Updates Guidance Manual to Include E and L Spouses As Authorized to Work Without DHS Authorization

A. Introduction

The Department of Homeland Security (DHS) determines whether an alien can work in either employment or self-employment in the U.S. Under certain circumstances, DHS authorizes nonimmigrants to work. Some nonimmigrant aliens have employment authorization by virtue of their alien classification. Some can work but only for specific employers. Others must apply to DHS for employment authorization. Still others are not allowed to work while in the U.S. and cannot apply to DHS for authorization to work.

It is important to distinguish whether the alien can work and what document(s) is needed to establish authorization to work.

B. Policy – Evidence of Employment Authorization

Required evidence for employment authorization is either a Form I-94, Arrival/Departure Record, showing a class of admission that indicates the person can work without specific DHS authorization (RM00203.500C.1.) or an employment authorization document (EAD) (Form I-766 or I-688.

DO NOT process an application for an SSN card for an alien for work purposes unless the alien is authorized to work and shows the appropriate immigration document authorizing work. See RM 00203.510 and RM 00203.560 for processing SS-5s to issue SSN cards for nonwork purposes.

1. General – Evidence of Employment Authorization

Employment authorization for nonimmigrants can be determined by:

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  the alien’s class of admission code as shown on the I-94 (the non-immigrant classifications shown on the I-94 with employment authorization inherent in status are listed in RM 00203.500C.1.); or



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  the stamp or annotation on the I-94 shows the alien has been admitted as a refugee (see RM 00203.460B.); or



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  the stamp or annotation on the I-94 shows the alien had been granted asylum (see RM 00203.460D.) ; or



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  the Executive Office of Immigration Review granted the alien asylum and issued an order stating this (see RM 00203.460D.); or



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  the DHS-issued Employment Authorization Document (EAD), either Form I-766 or I-688B.



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  the designated school official’s annotation on Form I-20 A-B for certain F-1s or documentation of on-campus work (see RM 00203.470 ); or



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  the category shown on the DS-2019 for J-1s or a sponsor’s letter if the J-1 category is “student” or “international visitor” (see RM 00203.480).

The documents listed above are the only documents which FOs may accept as evidence of employment authorization.

NOTE: In some situations, the alien was issued an I-94 when admitted to the U.S. Later, applied for another immigration benefit and DHS issued the alien an EAD card. The alien may apply for an SSN card after the I-94 expired. If the alien shows a currently valid EAD, this is acceptable proof of authorization to work. In this situation, do not consider the expired I-94 when making a decision about alien status/work authorization; consider only the current immigration document (the EAD card).

2. Form I-766 or I-688B, Employment Authorization Document (EAD)

a. General

DHS issues Form I-766 and I-688B EAD cards to certain aliens regardless of age who are temporarily work authorized (see RM 00203.500C.2). The I-766 and I-688B are both standardized and uniform documents that provide evidence of authorization for the alien to accept temporary employment in the U.S.

Each card contains the following:

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  A statement of any regulatory limits on the time elements involved and a definite date as to when employment begins and ends (not indefinite).



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  A statement of any regulatory limits on the type of employment authorized (e.g., “A-5” or “274A.12 (A)(5)) or the statement “Without Further Limitation, “ if no such regulatory limits exist.

NOTE: DHS does not issue EAD cards to aliens lawfully admitted for permanent residence or nonimmigrants whose work authorization is incident to their class of admission.

b. Description

The I-766 is a card produced mechanically by an integrated card processing system only at DHS service centers. Form I-688B is a manually prepared laminated card produced and issued at local USCIS offices servicing the area where the person resides.

The front of both cards contains the alien’s photograph, fingerprint (or “W” for waived in lieu of the fingerprint), signature, biographic information (name, date of birth), the provision of law or category allowing the alien to work, any restrictions as to type or length of employment authorization, and the date and place of issue.

The issuing office’s location code is on the right side of the photo box on the I-688B. This code is four letters which indicates the District or POE code and the specific workstation at that location that issued the card.

See the ACM for exhibits of authentic I-766 and I-688B cards.

REMINDER: Any EAD card that does not conform to these criteria is not acceptable.

3. Period of Authorization to Work

The period during which the alien is authorized to work in the U.S. is shown on the face of the EAD card or on other documents such as the I-20 A-B.

Generally, when DHS extends the validity period of an EAD card a new card is not issued but rather an extension sticker is affixed to the card.

4. Automatic Extension of Validity Period

a. General

In certain extreme situations DHS may automatically extend the validity period of the EAD card for a temporary period but may not affix an extension sticker to the card.

Generally, these are situations where the extension applies to a significant number of aliens who either previously applied for or were granted Temporary Protected Status (TPS) and were previously issued EAD cards by DHS. If the designated TPS period expires but the country cannot receive the TPS aliens back, DHS may extend the TPS period for certain people from that country. In certain cases, the expiration period of the previously issued EAD card may be automatically extended for a temporary period until DHS can process replacement EAD cards for all affected aliens (see RM 00203.500B.4.c. for EAD cards issued to nationals of certain countries that are currently automatically extended).

In these cases, SAVE will not verify that the EAD card has automatically been extended or show the new expiration date of the employment period until the replacement EAD card is issued. If the alien has not received the new EAD card and submits the expired EAD card, the online SAVE query response will show “Institute Additional Verification.” Although the validity period of the document has automatically been extended, the new expiration date is not reflected in the DHS system. You must send a G-845 to the appropriate DHS office to verify that the expired document was validly issued (see RM 00203.748).

b. Processing the SS-5 When the Validity of EAD Card Has Been Automatically Extended

To process the SS-5 through the SS-5 Assistant in this situation, enter on the POC/Proof of Alien Status screen the expiration date for the EAD card as “D/S;” and the “category” or “provision of law” as “Other.”

Since the SAVE query response will show “Institute Additional Verification,” use the SS-5 Assistant to generate Form G-845. Send the completed G-845 to the appropriate DHS office (see RM 00203.748for the appropriate DHS office address). The G-845 response from DHS will generally show item 12. a. checked (“This document is not valid because it appears to be expired.”). Therefore when DHS returns the G-845 with this response, in Update Mode of the SS-5 Assistant:

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  Select Update Option #10 G-845 Received from the SS-5 Assistant Update Options screen



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  Check Block # 3, “This Document appears valid and relates to an alien authorized employment as indicated below:” on the SS-5 Assistant G845 Section B. Screen.



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  Select the “Full Time” and “Expires on” radio buttons and input the expiration date of (the date of the automatic extension).

Do not check block #12 “This document is not valid because it appears to be – expired” on the G-845 Section B. Screen in SS-5 Assistant because when you do this the case will remain in suspect status and you will not be able to clear the SS-5 application.

If DHS returns the G-845 and it shows a different response follow the appropriate instructions for the response provided (RM00203.740E.).

c. Automatic Extension of Validity Period of EADs issued to certain citizens/residents of Honduras and Nicaragua

DHS automatically extended until January 5, 2007, the EADs for certain Hondurans and Nicaraguans who applied for TPS and whose I-766 EAD cards expired on July 5, 2006.

DHS published notices in the Federal Register on March 31, 2006, about the extension of TPS for Honduras and Nicaragua and the automatic extension of employment authorization for certain nationals of these countries.

Because all aliens who qualify for this automatic extension have I-766 EAD cards and have continuously resided in the U.S. since December 30, 1998, most have been assigned SSNs but may apply for a replacement SSN card.

Many Honduran and Nicaraguan TPS re-registrants will not receive their new EAD cards until after their current I-766s expire. Therefore, DHS is automatically extending until January 5, 2007, the validity of I-766 EADs issued to certain nationals of Honduras and Nicaragua when the EAD cards expire on July 5, 2006. Re-registrants for TPS must apply to DHS for new EAD cards authorizing them to work after January 5, 2007.

Accept as valid through January 4, 2007, an I-766 EAD card for an alien who is a national of Honduras or Nicaragua when the I-766 expired on July 5, 2006 and shows the notation “A-12” or “C-19” on the face of the card under “Category.” Use the Numident record (when the person applies for a replacement SSN card), the alien’s expired I-94, or other evidence showing nationality to establish that he/she is a national of Honduras or Nicaragua.

When the G-845 shows “This document is not valid because it appears to be expired,” as the response for an EAD that expired on July 5, 2006, and the bearer is a national of Honduras or Nicaragua, presume the validity period of the EAD has automatically been extended until January 5, 2007. If the G-845 shows another response, follow RM 00203.740 E. (Procedure – Interpreting the G-845 Response).

When processing the SS-5 through the SS-5 Assistant, add the remark “HOND” or “NIC,” as appropriate in the Additional Remarks field on the Print Summary Screen.

d. Automatic Extension of Validity Period of EADs Issued to Certain Citizens/residents of El Salvador

DHS automatically extended until March 9, 2007, the EAD cards for certain El Salvadorans who applied for TPS and whose I-766 EAD cards expired on July 5, 2006 or whose cards will expire on September 9, 2006 or September 30, 2006.

DHS published a notice in the Federal Register on June 15, 2006, about the extension of TPS for El Salvadorans and the automatic extension of employment authorization for certain nationals of this country.

Because all aliens who qualify for this automatic extension of the validity period of the I-766 EAD cards have continuously resided in the U.S. since before March 9, 2001, most have been assigned SSNs but may apply for replacement SSN cards.

Many El Salvadoran TPS re-registrants will not receive their new EAD cards (with an expiration date of September 9, 2007) until after their current I-766 cards expire. Therefore, DHS is automatically extending until March 9, 2007, the validity of I-766 EAD cards issued to certain nationals of El Salvador when the EAD cards expired on July 5, 2006, or will expire on September 9, 2006, or September 30, 2006. Re-registrants for TPS must apply to DHS for new EAD cards authorizing them to work after March 9, 2007.

Accept as valid through March 8, 2007, an I-766 EAD card issued to an alien who is a national or resident of El Salvador when the I-766 card expired on July 5, 2006 or will expire on September 9, 2006, or September 30, 2006, and shows the notation “A-12” or “C-19” on the face of the card under “Category.” Use the Numident record (when the person applies for a replacement SSN card), the alien’s expired I-94, or other evidence showing nationality to establish that he/she is a national of El Salvador.

When the G-845 response shows “This document is not valid because it appears to be expired,” as the response for an EAD that expired on July 5, 2006, September 9, 2006, or September 30, 2006, and the bearer is a national of El Salvador, presume the validity period of the EAD card has automatically been extended until March 9, 2007 when the document shows “A-12” or “C-19” under Category. If the G-845 shows another response, follow RM 00203.740E. (Procedure – Interpreting the G-845 Response).

When processing the SS-5 through the SS-5 Assistant, add the remark “EL SAL” as appropriate in the Additional Remarks field on the Print Summary Screen.

C. Policy – Employment Authorization by Class of Admission

The following policy applies to employment authorization by class of admission:

1. Aliens Work Authorized Without Specific DHS Authorization

The following sections list nonimmigrants, by alien class of admission codes, who are authorized to work in the U.S. without specific authorization from DHS. The person’s I-94 will not have the DHS employment authorization stamp and the alien will generally not have an EAD.

For those with an asterisk (*), the principal alien, spouse, and child all have the same classification code. In some instances, both the husband and wife are both principal aliens when the classification is E-1, E-2. Accept their statements that both are principals.

For those with a double asterisk (**) (non-immigrant E-1, E-2, and L-2 classifications), the spouse is also authorized to work without specific DHS authorization. The E-1, E-2, and L-2 spouse is not required to apply to DHS for an EAD card as documentary evidence of work authorization but may choose to do so. When the E-1, E-2, or L-2 spouse applies for an SSN card and does not submit an EAD as evidence of employment authorization, he/she must submit, in addition to evidence of immigration status, evidence of a marital relationship to the principal E-1, E-2, or L-1 alien. The evidence of marital relationship between the applicant and the principal E-1, E-2, or L-1 alien is a marriage document (issued prior to admission to the U.S. as an E-1, E-2, or L-2 non-immigrant).

NOTE: Ask the alien whether he/she is the principal alien who is authorized to work or the spouse, child or other dependent of the principal alien and see RM 00203.500C.1,, RM 00203.500C.2., and RM 00203.500C.3. when the alien is the spouse (other than an E-1, E-2 or L-2 spouse) or child.

2. Aliens Who Require an EAD from DHS Authorizing Employment

The following lists nonimmigrants, by alien class of admission, who are authorized to work only with authorization from DHS. Employment authorization for these aliens must be shown on an EAD. For those with an asterisk (*), the principal alien, spouse, and child all have the same classification code. The visa of the dependent may show the name of principal.

EXCEPTION: Employment authorization may be shown on the I-94 for a refugee or asylee, on Form I-20 A-B for curricular practical training (CPT) for an F-1, or on a sponsor’s letter for a J-1 whose category as shown in item 4 of the DS-2019 is “student” or “international visitor.”

3. Aliens Who Are Not Authorized To Work In The U.S.

The following temporary nonimmigrants are not authorized to work in the U.S.: