Created by the Social Security Act of 1935, the Social Security Number was initially intended to track workers’ earnings and eligibility for benefits under the Social Security program. Despite initial reservations about creating a national identification card, the Social Security Number has become exactly that: a national identifier necessary to perform numerous tasks associated with standard life in America. The number is used to open bank accounts, obtain and utilize health insurance, secure mortgages, attend school, and obtain drivers licenses. It is needed to file a U.S. Income Tax Return, and of course, it is still used to track earnings and eligibility for benefits under the Social Security Program.
Because of the many purposes served by the Social Security Number, living in America is difficult without such a number. Citizens of foreign countries living in the U.S. feel they must have this number to function in our society. In fiscal year 2002, the Social Security Administration issued 1.3 million Social Security Numbers to foreign nationals. This is approximately 22% of all Social Security Numbers issued for that fiscal year. 1 Because of its importance in our society, it is a key piece of information in creating a false identity, whether the purpose of the false identity is simply living and working illegally in the U.S. or committing acts of terrorism. The events of September 11, 2001 brought to light the ability of terrorists to obtain Social Security numbers, and therefore, Social Security Administration has made obtaining the Social Security Number more difficult.
Of the many issues foreign citizens face with the U.S. Social Security system, this article focuses on three: (1)The process through which Social Security Numbers are assigned to foreign nationals in the U.S.; (2)Issuance of Social Security Numbers for reasons other than work; and (3)Problems encountered by U.S. employers when Social Security Number issuance is delayed to a potential foreign-born employee who has permission to accept employment in the U.S.
The process of assigning a Social Security Number to a specific individual is called enumeration. Most U.S. Citizens obtain the number without difficulty. However, individuals born outside the U.S. who are not citizens must qualify to receive the number, and this is usually accomplished by demonstrating that the person has the ability to work legally in the U.S. Documents issued by the Immigration Service (officially titled "U.S.C.I.S." or "United States Citizenship and Immigration Services") are used to prove the legal ability to work. The Immigration Service is part of the Department of Homeland Security ("DHS"). DHS and the Social Security Administration now work together to ensure Social Security Numbers are only given to those who truly qualify.
Foreign nationals who have been granted lawful permanent resident status (commonly described as "green card holders") have the ability to work permanently in the U.S. and have the ability to receive Social Security Numbers. Because of fraud concerns, the Social Security administration must now verify with DHS that an applicant for a Social Security Number really has lawful permanent resident status or another temporary status which allows employment.
This process is called collateral verification. When a foreign national applies for a number at a local Social Security office, he or she must show a document issued by the Immigration Service which establishes the ability to work legally in the U.S. The Social Security office then performs a query through an on-line system called Systematic Alien Verification for Entitlements, or "SAVE" which is maintained by DHS. If the system is able to verify the individual’s immigration and work status, the number is issued. If not, the Social Security office must mail a request for verification to DHS which can take weeks or even months to finalize before the number is issued, leaving the foreign national without a Social Security number while waiting for the matter to be resolved.
One measure underway to change the delays in issuing Social Security Numbers to non-citizens is called Enumeration at Entry2 or "EAE," which issues the number to non-citizens before they actually enter the U.S. Started in 2002, EAE is now available at all United States consulates, but it is only available to non-citizens over age 18 who qualify for permanent resident status in the U.S. EAE is not available to non-citizens entering the U.S. with temporary visas.
EAE starts when an intending immigrant applies for a visa at a U.S. consulate. When the consulate approves the individual for permanent residence and approves the visa, the application for the Social Security Number is also approved. Then the information is sent electronically from the consulate to DHS. The individual then travels to the U.S. with the visa and is inspected by DHS upon entry. DHS admits the immigrant upon a satisfactory inspection of the passport and visa, and the electronic information necessary for issuance of the Social Security Number is sent to the Social Security Administration. The Social Security Administration then assigns a Social Security Number from a special series created for EAE cases and mails the card to the individual.
The enumeration process becomes more complicated when encountered by foreign nationals entering the U.S. for a temporary purpose. Every year, numerous foreign citizens enter the U.S. for many temporary purposes ranging from tourism to temporary employment. Certain cases are straight-forward. For example, an individual admitted to the U.S. as a tourist has no valid reason for a Social Security Number as such a number is not necessary to tour the country while an individual admitted with a temporary work visa is eligible for enumeration as he or she has DHS issued documents confirming the ability to work legally.
However, the issue becomes blurred when referring to people allowed to be in the U.S. for an extended amount of time but who do not possess employment authorization. Students and spouses of individuals with temporary work visas are the most common foreign nationals in this situation. These people are in the U.S. for an extended amount of time and usually encounter the need to produce a Social Security number for a driver’s license, insurance, banking, or some other necessity of life. The Social Security Administration will issue a number to a foreign national without employment authorization only if he or she has a "valid non-work purpose."
Valid Nonwork Purpose
In September of 2003, the Social Security Administration revised its policy on exactly what constitutes a valid non-work purpose.3 Now, the only non-work reasons a Social Security number will be issued are to satisfy a Federal statute or regulation which requires an alien to have a Social Security number in order to receive a federally-funded benefit to which the alien has otherwise established entitlement or to satisfy a State or local law that requires an alien who is legally in the U.S. to have a Social Security number in order to receive public assistance benefits. Addressing concerns that individuals ineligible for enumeration have difficulty with other goods or services from private entities, the Administration claims that the purpose of the number is to track earnings, not accommodate private companies and commercial purposes.4
This policy specifically excludes issuance of a driver’s license as a valid non-work purpose. The Social Security Administration’s reasoning for excluding this as a valid non-work purpose is that their own research shows that fraudulently used Social Security Numbers have been "almost exclusively" in relation to numbers issued for driver licensing. Responding to concerns that aliens without work authorization cannot receive driver’s licenses in certain states, the Social Security Administration urges those states to develop an alternative identifier system for the issuance of licenses to such otherwise qualified individuals. After all, issuing driver’s licenses is a state, not federal, function. 5
Progress in this area which benefits foreign nationals without work authorization has been made. In 1997, there were 17 states which required a Social Security Number to obtain a driver’s license, and by 2003, there were only 7 states requiring the number for a driver’s license.6 Illinois is one such state which has made a change in this area by recently changing the law to now allow for a Temporary Visitor Driver’s License, or a "T.V.D.L." To be eligible for a T.V.D.L., the foreign citizen must be residing in Illinois, authorized by the U.S.C.I.S. to be present in the U.S. for at least one year and have at least six months remaining on the authorized stay, provide acceptable identification which documents name, date of birth, Illinois residency and verification of written signature, and be ineligible for a Social Security Number. To prove the last element, the foreign national must present a letter from the Social Security Administration, dated within 30 days of the date for which the T.V.D.L. application is made, which states that the individual is ineligible for the Social Security Number.
Only certain offices of the Illinois Secretary of State are authorized to issue T.V.D.L.’s, and such a license can only be issued for the operation of a personal car, motorcycle or motor driven cycle.7
Given the fraud concerns arising from the issuance of driver’s license to foreign citizens, the program requires document verification between the Secretary of State’s Office and U.S.C.I.S. When an application for a T.V.D.L. is made, the Secretary of State’s Office must do an on-line verification with U.S.C.I.S. If U.S.C.I.S. does not immediately respond to the request for verification, the Secretary of State initiates a secondary inquiry which can take several days. If this secondary inquiry is not successful, the applicant is sent to U.S.C.I.S. to resolve the matter.
Employment When Enumeration is Delayed
Because of the security focus of the post-September 11 policies surrounding Social Security Number issuance and delays caused by required communication between two already overburdened government entities, many foreign nationals find themselves eligible for and in need of a Social Security Number but unable to immediately obtain it. Employers offering jobs to foreign citizens with employment permission are often confronted with problems because of these delays. Such an employer has made a job offer to an employment-authorized foreign citizen but now has the issue of how to employ someone who, although eligible for a Social Security Number, does not currently possess it.
While there is no federal law prohibiting the hiring of an individual without a Social Security Number, there are federal laws and regulations which require reporting of and payment of taxes on wages, such as payroll taxes. Compliance with these laws requires the payee to have a valid Social Security Number. The Internal Revenue Service has issued guidance on the matter in which it acknowledges that the new Social Security Number enumeration procedures result in delays in number issuance. In such cases, the IRS states that it most likely will favorably consider the employer’s failure to report the payee’s Social Security Number on required informational returns and payee statements to be a situation in which reasonable cause exists for not asserting penalties.8
When faced with this issue, the employer should keep documentation of the fact that the reason for the missing Social Security Number is a delay by Social Security.9 Under such circumstances, the Social Security Administration will issue to the applicant a copy of his or her uncertified Social Security Number application as documentation of the delay in Social Security Number issuance.10
While the IRS cannot address issues encountered by other federal agencies because of Social Security Number delay, they note that the filing of Form I-9 without a Social Security Number does not invalidate the I-9. If a foreign employee can prove employment eligibility with documents listed on Form I-9 other than a Social Security card, the I-9 is still valid.11
The approach from the IRS provides guidance on the problem of how to employ a foreign national without a Social Security Number when the reason for the lack of the number is government delay. The approach of the Illinois Secretary of State Office provides guidance on how to issue a driver’s license to a foreign national ineligible for enumeration. Other agencies and private companies need to develop systems for identification which do not rely on the Social Security Number.
Given the security concerns surrounding the use of the Social Security Number, the solution is not to require the Social Security Administration to issue the number to anyone who applies. Rather, a more workable solution consistent with protecting the security of the U.S. while still respecting our foreign-born residents, centers on working with federal and state agencies and private companies to develop alternate identifying systems and develop methods of accommodating those eligible for enumeration experiencing delays receiving the number.
1 GAO Report to the Chairman, Subcommittee on Social Security, Committee on Ways and Means, House of Representatives, GAO-04-12, October 2003
2 20 CFR 422.103
3 Federal Register: September 25, 2003 (Volume 68, Number 186) Codified at 20 CFR 422
7 Currently, the locations of the Illinois Secretary of State Office which issue TVDL’s are Bloomington, Champaign, Rockford Central, Springfield Dirksen Parkway Facility, Carbondale, and Chicago West. For more information on TVDL’s in Illinois, visit the Secretary of State’s website at www.cyberdriveillinois.com.
8 "Delays in issuing SSN’s to Aliens by the Social Security Administration," www.irs.gov/business/small/international
10 Policy Instruction issued by the Social Security Administration August 29, 2002, Identification number EM-02102
11 "Delays in issuing SSN’s to Aliens by the Social Security Administration," www.irs.gov/business/small/international
Mary L. Field is a solo practitioner in Oak Brook, Illinois, and she concentrates her practice in the area of immigration law. She has a J.D. from Loyola University School of Law and a Bachelor’s Degree in Public Accounting from Loyola University School of Business Administration.