How can something so simple as a field on the I-9 form requesting an employee’s social security number be so complicated? “It’s the government, stupid.” In an attempt to clarify the issues surrounding social security numbers and the I-9 form, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has provided guidance to employers on when and how social security numbers and social security cards should be requested from employees.

The Basics:  There are three basic rules for social security numbers and I-9s: (1) If an employee refuses to provide his or her social security number when completing Part 1 of the form, the employer must accept this decision and may not take any adverse action against the employee for refusing to provide the number. (2) If an employee does not yet have a social security number, but is authorized to work, the employer cannot delay I-9 completion or hiring solely for this reason (3) The employer may never request to see specific documents, such as a social security card, for completion of Part 2 of the form.  Doing so would be considered to be Document Abuse, a form of I-9 based immigration related discrimination.

Making Requests for Social Security Numbers: In its recent guidance, the OSC addresses the situation when an employer requests the social security number or card from an employee for purposes other than completing the I-9 form such as for payroll or benefits. In this circumstance, OSC recommends communicating clearly the purpose for the request, as well as making the request outside of the I-9 completion process. Being clear about the purpose and keeping the request outside of the I-9 completion process will ensure that there is no confusion on the employee’s part and no appearance or suggestion of document abuse or other immigration-related discrimination. As always, employers should ensure that such requests remain consistent irrespective of the citizenship status or national origin of the employee. 

Electronic On-Boarding Systems: The OSC also warns employers against asking to see an original or even a copy of an employee’s social security card for any  purpose, even those unrelated to employment eligibility verification as it too may create the appearance of violating immigration-related anti-discrimination provisions. Similarly, the request for a social security card  during an electronic payroll or on-boarding process that combines various payroll and new hire procedures, including the employment eligibility verification process, may constitute a request for a specific document for employment eligibility verification purposes, potentially implicating the immigration related discrimination provision prohibiting document abuse.  

Late Issuance of SSNs: When foreign nationals who have been sponsored for work-related visas, such as H-1B, L-1A or TN, first enter the United States, it is often the case that the issuance of their social security numbers will take 4-8 weeks. Employers should develop a process to pay these  individuals while they are waiting for social security numbers to be issued.  The Internal Revenue Service (IRS) advises employers that no federal law prohibits either the employment of, or payment of wages to a person solely because that person lacks a social security number. State and federal labor laws may also be implicated if wages are delayed.  When facing this situation, employers should consult with counsel and follow IRS guidance to pay individuals who do not yet have social security numbers.