Minutes of the 3/31/03 AILA about Social Security Numbers
Posted by Jeff Xie on June 12, 2003 at 17:31:52
Minutes from Liaison Meeting
Between AILA and the Social Security Administration
March 31, 2003 It is our understanding that since September 1, 2002, the Social Security Administration (SSA) has been following a nation-wide policy requiring the SSA to verify a foreign national’s immigration documents and status by using the INS’ Systematic Alien Verification for Entitlements (SAVE) program before processing an application for an SSN or a replacement card. The SSA Regulations at 20 C.F.R. § 422.105 provide a presumption of authority of a nonimmigrant alien to accept employment:
A nonimmigrant alien shall be presumed to have permission to engage in employment if the alien presents a Form I-94 issued by the Immigration and Naturalization Service (INS) that reflects a classification permitting work. (See 8 C.F.R. § 274a.12 for Form I-94 classification.) A nonimmigrant alien who has not been issued a Form I-94, or whose Form I-94 does not reflect a classification permitting work, must submit a current document authorized by the INS that verifies authorization to work has been granted, e.g. an employment authorization document, to enable SSA to issue an SSN card that is valid for work purposes. How does SSA justify the practice of checking all authorizations with INS in light of this regulatory presumption of authority to accept employment?
ANSWER: The regulation explains the evidence of alien status that must be submitted to SSA as proof the person is authorized is authorized to work. While the current policy of “total verification” was not mandated by law, it was adopted to improve the integrity of the enumeration process by verifying with the issuing agency that the document submitted to SSA is authentic and has not been altered. The regulatory presumption quoted above is not inconsistent with total verification, which is merely an extension of the program to verify the authenticity of the documentation presented. Prior to September 1, 2002, a foreign national who had been in the country for less than 30 days would be assigned an SSN if he or she could present documents that appeared on their face to provide work authorization. Can foreign nationals who have been in this country for less than 30 days still have their SSN applications processed even if the SAVE system does not verify their INS documentation?
ANSWER: The 30-day “grace period” that was used prior to September 1, 2002, is no longer being used. Under the policy of total verification, SSA is verifying the documentation of every foreign national, including those who have been here for fewer than 30 days. Can you explain the actual process of checking work authorization with the INS and give us time frames of how long it takes if it is done on SAVE or if it is done through the submission of a Form G-845 to the INS?
ANSWER: SSA checks the online SAVE information to try to verify immigration documentation and employment authorization. If the individual who is presenting documents has not been in the United States for 10 days, SSA will continue to query SAVE on a regular basis for 10 days from physical admission. If the information is available online SAVE after 10 days from physical admission, or if the online information in SAVE is different from the documents presented by the individual, SSA manually prepares Form G-845 and make copies of the supporting documents. The G-845 and the copies of the supporting documents are forwarded by mail to the Department of Homeland Security, Bureau of Immigration and Customs Enforcement (DHS, BICE). BICE has set a goal of 20 work days to respond to a Form G-845 from SSA. If SSA receives no response within that time frame from BCIS, SSA will place two follow-up calls to BICE before involving SSA management. It is our understanding that the Form G-845 is currently completed manually and mailed to the INS. Are efforts being made to reduce the I-845 to an electronic inquiry?
ANSWER: Yes. SSA and DHS are currently discussing SSA electronically sending the G-845 information to BICE rather than the paper form. However, we do not expect that this will be implemented for at least 18 months. If the information in SAVE is incorrect, how can an individual get the information corrected and get an SSN issued? We have had many reports of individuals whose nonimmigrant visa status allows them to work in the United States, but the incorrect status has been entered in SAVE. It is not clear to us how the information is entered into SAVE, either for someone who has made a physical admission into the United States or for someone who has changed his or her status.
ANSWER: The SAVE program includes checking several databases, including the ASVI database (which is a database used by beneft-granting agencies and institutions in verifying immigation status; it has information for aliens with A numbers—lawful permanent residents, refugees, asylees, and those with EADs) and NIIS (Non-Immigrant Information System) which has information for non-immigrants issued Form I-94s at POEs). The data in CLAIMS, including I-797 change of status approvals, is not available online to SSA by SAVE and can only be verified by the G-845 manual verification. There may be delays in entry of data regarding admissions into the United States since I-94 data is not entered into NIIS at POEs. Rather, POEs send the I-94's by Federal Express daily to a contractor in Kentucky, which then enters the data in NIIS. BICE has a mechanism in place to correct incorrect data in its databases, e.g., class of admission, name spelling, country of nationality, etc. The request to correct this data can be made by the local DHS/BCIS office. The Social Security Administration offices in California are denying Social Security numbers to LIFE Act legalization applicants, despite having a valid employment authorization card. In their denial letters, the SSA office is stating, “We cannot issue you a social security card because we cannot use the document you gave us to show your citizenship/alien status, identity and age. The agency that keeps these records said that your documents do not match their records.” Despite letters to the SSA in California, no reconsideration has taken place. Clients have had their employment authorization cards for more than six months. Is this a change in policy or a training issue?
ANSWER: There has been no policy change. This issue probably arose because of SSA’s policy requiring an SSN applicant to submit at least two documents. An SSN applicant must establish age, citizenship/alien status, and identity. Further, the applicant must establish he/she is authorized to work in the U.S. or, if not, a valid nonwork reason for an SSN. If one document, e.g., an EAD, is used to establish age and aliens status/work authorization, at least one other document is required to establish identity. See RM00203.0202B regarding number of documents required. See also EM01136 regarding life act applicants (August 17, 2001). In a Miami area social security office, an individual who changed status from B to H-1B was told that, because of the change of status, he had to have a “special letter” from INS to get an SSN. He presented his Form I-797, but was told that he needed a letter in addition to the form. Is this an error, or is there some extra requirement in a change of status situation? If so, INS (now BCIS) has no system for issuing such a letter, so how can one be obtained?
ANSWER: The I-94 portion of the I-797 showing the H-1B classification is acceptable per SSA instructions. See section RM 00203.450 B.1.d. http://policy.ssa.gov/poms.nsf/36f3b2ee954f0075852568c100630558/
cfc285a410ab4bf685256ce2006a21aa?OpenDocument When there has been a change or extension of nonimmigrant status, INS issues a new I-94 card that is a tear-off at the bottom of the Form I-797. Some SSA offices have refused to accept these as proof of employment authorization. Conversely, some nonimmigrants (e.g., E’s, R’s, I’s) may obtain visas directly at a Consulate abroad, without having to petition the INS. They are issued an I-94 when they enter the U.S., but have never received a Form I-797. Some SSA offices have refused to issue SSN’s to those nonimmigrants because they cannot present a Form I-797. Can instructions be issued to the field explaining that an I-94 card that is a tear-off portion of the Form I-797 is an acceptable document, and that in certain kinds of visa cases an I-94 without a Form I-797 is also acceptable?
ANSWER: SSA instructions already indicate that a Form I-94, whether issued as part of a Form I-797 or issued at entry, are acceptable to show as eligibility for an SSN. L-2 and E spouses are now permitted to work in the United States with employment authorization granted by the INS. The SSA website does not reflect this fact, and a number of SSA offices have refused to issue SSN’s to such spouses. How can this be resolved?
ANSWER: The chart on the SSA website only refers to classes of visa holders who have inherent work authorization. L-2's and E spouses are entitled to work only with an EAD. Therefore, the EAD must be presented. What is the current processing time for Social Security numbers?
ANSWER: In cases where there are no problems regarding verification, the number will be issued in one to two weeks, and a Card will be issued in less than five days of assigning an SSN. In cases where there are problems in SAVE verification and the I-845 is sent to BCIS, see question one for time frames. Some individuals applying in New York who are awaiting resolution of the check of the SAVE system are being told by SSA officers that they cannot work without an SSN. Has there been a change in policy, or is there a training problem with these officers?
Individuals delayed in obtaining social security numbers are encountering other problems in day-to-day living: banks will not open accounts for them; landlords will not rent to them; mortgages and other credit cannot be obtained; cars cannot be bought, leased or rented; motor vehicle departments will not issue driver’s licenses in some states. What can these people do during the weeks and even months that it is taking to obtain an SSN?
ANSWER: Individuals who have permission to work in the United States can do so without a Social Security number. When they apply for a social security number, they are issued a letter acknowledging receipt of the application. This can be presented to the employer. In some cases, employers will not permit employees to begin working without a Social Security number because of technical problems with an automated payroll system that requires a Social Security number. However, under both IRS, Department of Labor and SSA rules, an individual is not required to have a Social Security number to begin working. The Social Security number is required at the time the employer must file payroll taxes. Both public and private agencies, as well as the general public, need to adjust to the greater restrictions on the issuance of SSN’s, which SSA is imposing to enhance the integrity of its process and for Homeland Security. Agencies that have adopted the use of the SSN as an identification number will need to adjust to the new reality that sometimes individuals who are in the United States legally cannot get a Social Security number. Many individuals who have applied or have been granted asylum by the Immigration Court have no identification documents. For example, defecting ship crew members who left their original documents aboard the boat when they jumped ship, or individuals who fled their countries with no identification and entered the U.S. using false identification or no identification at all, will not have any valid documentation to prove their identity. In many cases, asylum applicants and grantees will receive work authorization from the INS.
In one instance, an applicant for asylum was awaiting his asylum interview and was able to obtain a state identification card. He has no other identification documents with his name and date of birth. The program specialist at the regional SSA office in Denver indicated that SSA cannot/will not issue an SSN because he must have an identification document which pre-dates the INS-issued work card. He indicated that SSA will excuse this rule only in the case of asylees, refugees and parolees, but not in the case of asylum applicants. Given that INS has granted work authorization and that asylum applicants often arrive in the U.S. without official documents, can work-authorized asylum applicants be allowed to obtain social security numbers by showing their INS-issued employment authorization document?
ANSWER: Yes. An individual who has been granted asylum or refugee status should not be required to show an identification document that pre-dates the EAD. However, SSA policies did not address the issue of applicants for asylum status. Even with individuals who have been granted asylum, some SSA officers insist on seeing an I-94 card and other original documents. The only identification that the asylees can present after the grant would be a work authorization card, which is typically taking four months to be issued by the INS. Similar problems are encountered by derivative asylees (i.e., family members of persons granted asylum). In the cases of individuals who have been granted asylum by the INS or the judge, can an SSN be assigned if the individual presents evidence of such grant?
ANSWER: SSA has issued an EM listing acceptable documentation to prove asylum status. [Exhibit 2 to the AILA/SSA Liaison Minutes from March 2002 explains the documents necessary for an asylee to obtain an SSN.] It is our understanding that a new, no-match letter will be used this year.
Can we obtain a copy of the current no-match letter?
Approximately how many no-match letters will be issued during this fiscal year?
How are the recipients of such letters selected, and are letters being sent to both employees and employers?
ANSWER: There are actually four so-called “mismatch” letters. The Code V letter is sent to employers and requests corrected name and SSN information for employees whose reported W-2 data did not match SSA’s records (see Exhibit 1). In 2002 approximately 800,000 Code V letters were sent out. Based on a cost-benefit analysis of the information received in response to these letters, SSA has reduced the number of Code V letters that will be sent in 2003 to approximately 130,000. Code V letters will now go to employers where the information submitted on W-2's does not match SSA records in at least 10 individual cases, provided those 10 cases comprise at least .5% of the total employer’s workforce. The new Code V letter does not include any language regarding IRS enforcement of penalties for mismatched data. This language was removed from the letter this year because IRS is not undertaking such enforcement at this time, and because employers were reacting adversely to the information. SSA also sends letters for each person for whom the reported name and SSN did not match SSA’s records. The SSA-L3365 (Exhibit 2) is sent to the employee and asks for corrected name and social security number information. When SSA does not have a valid address for the employee, an SSA L-4002 is sent to the employer asking for corrected name and SSN information for the employee. It is sent regardless of the employer's mismatch rate The fourth letter is the SSA-L 2765 (Exhibit 4) which is sent to a self-employed individual where there is mismatched information. When sending a Code V letter to an employer, SSA expects the employer to check its records; then to ask the employee to recheck his or her SSN; then to ask the employee to check with SSA if the employee maintains that the SSN submitted is accurate. In past meetings with local SSA offices, our members have been assured that a person can reclaim past SSA earnings received under a different SSN. This would permit the person to get credit for all work and SSA withholdings.
Under what circumstances will this “reclamation” of earnings be permitted?
What reasons for having different numbers are acceptable to SSA?
What proof and information does SSA require in establishing past work when reconciling different SSNs?
Does SSA do any kind of follow-up regarding persons who may have used different SSNs?
When someone makes a correction in his or her SSN, is this information shared with other agencies?
If the numbers used were falsely obtained or used, will SSA or IRS prosecute?
ANSWER: SSA’s overarching goal in the reclamation process is to match the correct earnings to the correct SSN account, not to police or prosecute fraud for reporting earnings on a false or invalid SSN. Upon proof that earnings were reported to an invalid or improper SSN (including an individual tax identification number [TIN]), SSA will transfer the earnings credits to the appropriate account. Proof of earnings can include W-2's, paystubs or tax returns. In some cases, SSA will interview employers or coworkers to verify the employment claimed. SSA will share the corrected information with the IRS but only if the employer has not already paid employment taxes on the earnings and tax years involved are within the statute of limitations (i.e., 3 years 3 months, and 15 days after the year in which the wages were paid. SSA does not share this information with BCIS. The following RM’s discuss acceptable proof of employment: RS 01403, RS 01404, RM 03870. We have been told that SSA or IRS will forward to INS/DHS the names and addresses of persons who reported income using an ITIN. Is this the case? Do you know what INS/DHS does with this information?
ANSWER: SSA does not share this information with the Department of Homeland Security but does share it with IRS. Exactly how has SSA implemented the federal court decision in Iyengar v. Barnhart (Civil Action No. 02-0825 (ESH), U.S. DC DC, Nov. 26, 2002), see HTTP://www.dcd.uscourts.gov/02-0825.pdf? Are regulations being considered that would reimplement SSA’s policy of not issuing SSNs to individuals merely to obtain a driver’s license? Can you give us a list of which states require a social security number for driver’s licenses?
ANSWER: Immediately after Iyengar was decided, SSA instructed its field offices to issue SSN’s for driver’s licenses in those states having laws requiring an SSN as a condition of licensure, provided the state properly verifies for SSA the need for the SSN in a particular case (RM00203510). Only a handful of states require the SSN for a driver’s license, including Delaware, Georgia, Hawaii, Illinois, Pennsylvania, Utah and West Virginia. These states are working on procedures for obtaining the information required by SSA to issue a driver’s license. However, on March 26, 2003, SSA issued a Notice of Proposed Rulemaking (NPR) which would eliminate a driver’s license as a “valid non-work purpose” for an SSN. SSA acknowledges the hardship this would cause to individuals who are in the United States legally but cannot get an SSN for work purposes, but asserts that it is up to the states to allow applicants to provide alternative identifiers to the SSN since SSA is restricting issuance of non-work SSN’s for national security reasons. It should be noted that while all states need to collect SSN information under the Welfare Reform Act, the SSN is not required for driver’s licenses or other purposes unless there is a separate state statute imposing such a requirement. What is the status of the Enumeration at Entry program?
Will it be used only for immigrants who are entering the United States, or also for non-immigrants?
What will be the turn-around time for obtaining a Social Security number through the Enumeration at Entry program?
ANSWER: The first phase of the enumeration at entry program was implemented on October 1, 2002, in the Immigrant Visa Sections of the U.S. Consulates in Manila, Ciudad Juarez and London. All immigrant visa posts now have the software necessary to implement enumeration at entry and are expected to be online on April 1, 2003. Participation in the program is up to each applicant. If an applicant opts to participate on the Form DS-230, the Department of State will transmit his/her information to DHS, which will transmit the data to SSA upon admission. SSA will then process the information, assign an SSN, and issue a card. The number is assigned within a few days after admission. SSA is working with the Department of State and DHS to explore expanding the process to other groups of aliens (e.g., non-immigrants, but no concrete steps have been taken at this time. See http://www.ssa.gov/ssnvisa/ for more information about this process. Some persons in valid nonimmigrant working status (i.e., H, L, E, etc.) indicate that their accountants advise them that they cannot claim their children as dependents on their tax returns without a Social Security number, and that an individual tax payer i.d. number will not suffice. Has there been a change in policy, or are these accountants mistaken?
ANSWER: This is an IRS question. The INS in Texas told some AILA members that it has access to IRS and SSA records at the touch of a button since May. Is this correct? Are taxpayer records not confidential?
ANSWER: SSA is not aware that DHS would have access to SSA information on-line. Moreover, SSA is unaware that the DHS would have access to IRS records. An individual from the Dominican Republic obtained a “green card” with two last names. The social security office in Massachusetts told this individual that it has to match the name to the green card but can only add one last name to the system. What can an individual do in this situation to obtain a social security card?
ANSWER: This applicant was given incorrect information, as SSA systems allow for multiple last names. While there are a finite number of characters that can be included in a name (21 characters in the last name), multiple last names can be used. Some non-immigrants live in the U.S. for a few years then leave. They may return later for another round of employment. Can they use the same Social Security number they had during their previous residence?
ANSWER: Yes. The same SSN stays with a person for life, even if a non-work SSN is changed to an unrestricted SSN. Since the events of September 11, 2001, and especially since the creation of the Department of Homeland Security, is the Social Security Administration playing a larger role regarding national security? If so, can you explain how?
ANSWER: The President has said that Homeland Security is a top priority for the entire administration. While SSA is not a major player in Homeland Security, and was not impacted in a major way by the creation of the Department of Homeland Security, it recognizes the importance of the SSN in all facets of everyday life. Therefore, SSA is contributing to national security by changes in the enumeration process, including verification in all cases and imposing greater controls on non-work SSN’s, and who gets a Social Security card. SSA is aware that this affects other organizations including banks, motor-vehicle agencies, etc. Listed below are a number of web sites we have found that include information regarding social security law, regulation, policy and practice. Are you aware of any others that are helpful?
a. www.ssa.gov/immigration/
b. www.ssa.gov/pubs/intstudents.htm
c. www.ssa.gov/employer/ssnv.htm
d. www.ssa.gov/regulation/rules-in-effect.htm ANSWER: This list includes the primary sources for information regarding SSA policies. In addition, it is important to understand that most policy and procedures are included in the Program Operations Manual System (POMS) which is available on-line. (http://www.ssa.gov/regulations/index.htm http://policy.ssa.gov/poms.nsf/aboutpoms Within the POMS there are instructions (see http://policy.ssa.gov/poms.nsf/poms?OpenView ). The RM -- Records Maintenance section (http://policy.ssa.gov/poms.nsf/poms?OpenView&Start=1&Count=50&Expand=1#1 ) has the Social Security Number, Policy, and Procedures instructions. In addition, EM’s (Emergency Messages) are issued, but these are not available on-line. SSA has on occasion sent important EMs to AILA to be distributed to its membership. As a final note, SSA indicated that, in addition to Homeland Security, a very important issue that affects both citizens and non-citizens alike is the issue of identity theft. SSA warned that all persons should take precautions against identity theft, and that includes not carrying your Social Security card with you on a regular basis, as well as being very careful about giving your Social Security number to any unauthorized individual or agency. Cite as "Posted on AILA InfoNet at Doc. No. 03061141 (June 11, 2003) ."
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