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Persistent warnings by civil libertarians notwithstanding, the Social Security card and number have become the de facto identifiers of the individual in the United States. From federal, state, and local government uses to credit ratings to video store rentals, the Social Security number (SSN) is seemingly universally requested as a “secure” identifier in support of a multitude of transactions. The evolution of a 1930s benefit account number into a virtual national identity card, coupled with the concern about unauthorized workers from abroad and the still-raw and very real threat posed by foreigners who mean us harm, has created at least three significant challenges for U.S. employers. These include initial issuances of SSNs, receipt of “No Match” letters, and ill-advised efforts to voluntarily verify an SSN. WISDOM OF DELAYING APPLICATION Since September 2002, the Social Security Administration has required its offices to verify an alien’s status in the United States against the electronic records maintained by the federal immigration service before issuing an original or replacement SSN. Unfortunately, it quite frequently takes the immigration service 10 business days or longer following an individual’s entry into the United States to update its electronic records. This creates a problem for individuals who arrive and immediately apply for their Social Security card. Under the 2002 policy, when there are no online immigration records available for an SSN applicant from abroad, the Social Security Administration will resort to a written inquiry regarding the individual’s immigration status — to which it must receive a response before it will issue a Social Security card to the individual. The new policy frequently results in delays of 12 weeks or more in the issuance of the Social Security card. This lag causes problems for employers who require an SSN to enter the employees into their payroll system, as well as practical problems for the immigrants as they try to “break in” to modern American life. Lacking an SSN, they find themselves temporarily, but sometimes for significant periods of time, unable to open bank accounts, secure housing, obtain drivers licenses, or qualify for auto loans. Paradoxically, the best solution to this bureaucratic problem appears to be to wait to apply for the SSN in order to get it faster. Waiting at least 10 business days following initial entry to the United States before applying for the issuance of the SSN seems to work far better than an immediate application. A related issue arose following an October 2003 amendment to Social Security Administration regulations. The amendment purportedly attempted to increase security regarding the issuance of Social Security cards after 9/11, though the nexus between the new regulation and security is not as clear as one might hope, given that it applies indiscriminately to all nonimmigrant classes, visitors and dependents of work-authorized aliens alike. The amendment prohibits the Social Security Administration from issuing an SSN to a nonimmigrant who is not authorized for work, unless that individual can provide evidence that an SSN is legally required for the individual to receive federal or local government benefits. The Social Security Administration does not consider a state law requiring an SSN for issuance of a driver’s license as qualifying for this limited exception. In addition, clinging to what is by now largely fiction as a practical matter, the agency contends that an SSN is not required for private benefits and services such as banking privileges and private health insurance. Thus, the spouses and children of employees from abroad who are not themselves authorized for employment in the United States cannot obtain an SSN. ‘NO MATCH’ LETTERS Another source of employer angst and sometimes alarm over the past couple of years is the receipt of a “No Match” letter from the Social Security Administration. In what one might speculate is more than mere coincidence, the agency after 9/11 began sending a flurry of “No Match” letters to employers notifying them of potential discrepancies between the information presented by some employees and the agency’s records. Many employers assumed that workers named in such letters were illegal aliens. Employers sometimes suspended or terminated these employees — actions that go far beyond what is required and that may even form the basis for a claim of an unfair immigration-related practice. In fact, the only direct obligation of the employer in response to a “No Match” letter is to notify the employee of the mismatch and advise the employee to visit a Social Security Administration office to correct the discrepancy. If the agency then corrects or verifies the information in its records, it will give the employee documentation of the verification, which the employer may then use to respond to the government’s inquiry. A 1997 letter from the then-Immigration and Naturalization Service’s Office of General Counsel states that a “No Match” letter does not, by itself, put an employer on notice that an employee may not be authorized for employment. Nevertheless, the 1997 opinion makes clear that the facts of each case are what count and that there may indeed be circumstances when a “No Match” letter could lead to a determination that the employer was put on notice of unauthorized employment. RISKS OF VERIFICATION Consistent with its mutation into a virtual national identity number, the SSN has become one of the main gateways to information about individuals when a background check is conducted. Many employers mistakenly think that in verifying an employee’s SSN through a background check, they are decreasing the potential for liability. Unfortunately, the opposite is often true. The Immigration Reform and Control Act specifically prohibits employers from failing to honor documentation presented pursuant to the I-9 system for verifying employment eligibility. It also prohibits employers from requesting additional or specific documents. By going beyond what is required by the law and attempting to verify the validity of Social Security information provided by an employee, an employer creates an opening for a claim under the Immigration Reform and Control Act of “document abuse” or even an equal employment opportunity claim from an employee who feels that the request for additional documentation was discriminatory treatment. As with “No Match” letters, a well-meaning human resources manager might misinterpret discrepancy information received from a background check and/or voluntary verification of an SSN to mean that the employee is not authorized for employment. A termination or other adverse action taken against the employee under such circumstances would almost certainly constitute the basis for a claim of an unfair immigration-related practice in violation of the Immigration Reform and Control Act. Moreover, the issue of what constitutes “appropriate inquiries” in response to notice of an SSN discrepancy can be a legal minefield. In undertaking to verify the Social Security information beyond that which is required by law, an employer effectively places itself between a rock and hard place. Further inquiries or adverse action following a report of an SSN discrepancy could lead to a discrimination or document abuse claim against the employer. Yet failure to undertake such inquiries could allow the government to conclude that the employer had constructive knowledge that an individual was not authorized for employment, thus leading to liability for the illegal employment. In reaching out for knowledge about employee SSNs where there is no legal obligation to do so, the employer potentially loses the safe harbor provided by the Immigration Reform and Control Act — that an employer will not be held liable where it properly follows the I-9 verification scheme, but has no knowledge or constructive knowledge that an employee is not authorized. Thus, a well-meaning employer’s effort to protect itself from liability by attempting to verify SSNs could instead have the opposite effect of inviting liability where, absent the voluntary verification effort, none existed. The fact is that life in the United States increasingly requires individuals to identify themselves using a Social Security number. From the immigration perspective, the federal government appears schizophrenic about the issue: While the Social Security Administration continues to maintain that the Social Security card is not an identity document, Congress (although scrupulously taking care to label it an “employment authorization” document) has for practical purposes under the I-9 system endowed it with identification powers. The SSN’s importance under that system and the ubiquitousness of its use in other public and private realms result in sometimes peculiar challenges for the immigrant, the immigrant’s family, and the immigrant’s employer. James J. O’Brien is a founding partner and Monique A. van Stiphout is a partner of Krupin O’Brien, a firm that specializes in labor, employment, and business immigration. Both work in the D.C. office. They can be reached at [email protected] and [email protected], respectively.

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