The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), in an August letter, reminded employers that the Social Security Number (SSN) field in Section 1 of the Form I-9 is optional for employees of non-E-Verify employers. In the letter, the OSC reminded employers that some employees may not have an SSN on the first day of work: “no federal law prohibits either the employment of, or payment of wages to, a person solely because that person lacks a Social Security account number.” (Employees who have not yet received an SSN may indicate that they have “applied for” a number.)

While IRS guidance instructs employers by stating “[y]ou should ask your employee to show you his or her social security card,” available here, the OSC warns against such a practice. An employer’s request to see a specific document in the I-9 context represents a clear case of document abuse. If employers will require employees to present the Social Security card itself in any other context, the OSC reminds employers to make the purpose of the request very clear. The OSC states that even employers requesting the card “for purposes other than employment eligibility verification may create the appearance of violating the anti-discrimination provision.”

This OSC guidance may be of particular concern to employers who use electronic onboarding systems that combine I-9 requirements with elements from other forms. While we typically recommend that the I-9 portion of any such system be “quarantined” so that the I-9 elements are not changed (in order or content), this OSC letter reiterates such concerns.