03-24221. Evidence Requirements for Assignment of Social Security Numbers (SSNs); Assignment of SSNs for Nonwork Purposes

AGENCY:

Social Security Administration (SSA).

ACTION:

Final rules.

SUMMARY:

We are revising our enumeration processes for assigning Social Security Numbers (SSNs). By changing evidence requirements for assignment of SSNs and by defining “valid nonwork reasons,” the opportunity for fraud through misuse and/or improper attainment of SSNs will be reduced, and the integrity of our enumeration processes will be enhanced.

We are clarifying our rules regarding when we will assign an SSN to an alien not under authority of law permitting him or her to work in the U.S. We are now defining a “valid nonwork purpose” as those instances when a Federal statute or regulation requires an alien to have an SSN in order to receive a federally-funded benefit to which the alien has otherwise established entitlement, or when a State or local law requires an alien who is legally in the U.S. to have an SSN in order to receive general public assistance benefits (i.e., a public benefit that is means-tested) to which the alien has otherwise established entitlement.

These rules also change the age at which a mandatory in-person interview is required for original applications for an SSN. In addition, these rules eliminate the waiver of evidence of identity for children under age 7 who are applying for an original SSN card. We will now require an in-person interview with all individuals age 12 or older who are applying for an original SSN, and we will no longer waive the requirement to provide evidence of identity in original applications for a child under age 7. We are clarifying that evidence of identity must contain sufficient biographical or physical information to identify the individual. Additionally, we are eliminating reference to a pilot that we are no longer conducting, pertaining to the processing of replacement SSN cards for U.S. citizens.

EFFECTIVE DATE:

The rule is effective October 27, 2003.

FOR FURTHER INFORMATION CONTACT:

Arthur La Veck or Karen Cool, Social Insurance Specialists, Office of Income Security Programs, 157 RRCC, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, ([phone], [e-mail] or [phone], [e-mail]) or TTY [phone]. For information on eligibility or filing for benefits, call our national toll-free numbers, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet Web site, Social Security Online, at http://www.socialsecurity.gov.

Electronic Version: The electronic file of this document is available on the date of publication in the Federal Register at http://www.access.gpo.gov/​su_​docs/​aces/​aces140.html. It is also available on the Internet site for SSA (i.e., Social Security Online) at http://www.socialsecurity.gov/​regulations/​.

SUPPLEMENTARY INFORMATION:

Explanation of Changes

Who Can Be Assigned a Social Security Number

We are changing § 422.104 of our regulations to define what we consider to be a valid “nonwork reason” for assigning an SSN to an alien who does not have evidence of authority permitting him or her to work. The only valid nonwork reasons for assigning an SSN to such an alien are:

• To satisfy a Federal statute or regulation that requires the alien to have an SSN in order to receive a federally-funded benefit (such as Temporary Assistance to Needy Families) 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 an SSN in order to receive public assistance benefits (such as State-funded General Assistance) to which the alien has otherwise established entitlement.

Thus, under this clarification, State and local entities will be permitted to continue to require individuals to disclose their already assigned SSNs for purposes of receiving benefits or services. However, we will no longer assign an SSN to an alien for any nonwork purpose other than to receive Federal, State or local benefits as described in § 422.104.

In-Person Interview

We are changing § 422.107 of our regulations to require an individual age 12 or older be present at an in-person interview before assignment of an original SSN. The current threshold is age 18. As part of this interview, we will attempt to determine if an SSN had been previously assigned by asking additional questions of the applicant and, if a previously assigned SSN cannot be located, why an SSN was not obtained at an earlier time.

This measure offers necessary additional protection against fraud while minimizing the burden on the public because:

• At age 12, a child may have photo identification, such as a student identification card, which can be used for comparison purposes. If photo identification is not available, there should be other convincing documentary evidence of identity available.
• Although the parent or other adult authorized to act on behalf of the child will be in attendance and may be the primary respondent, we believe that requiring SSN applicants age 12 or older to be interviewed in person will significantly reduce opportunities for fraudulent applications. We believe that requiring the child to appear in person provides an additional measure of security when reviewing the evidence submitted in support of the application.
• A 12-year old may be able to provide answers to some questions without parental assistance.
• Few individuals will be affected by this measure as it is rare for a person to obtain an SSN for the first time as late as 12 years of age.

Today, most children need an SSN well before age 12. Section 11111 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) amended the Internal Revenue Code (IRC) section 32 (concerning the earned income credit). The amendment requires individuals filing tax returns after December 31, 1991 to include the taxpayer identification number—usually the SSN—of each qualifying child age 1 or older. The Uruguay Round Agreements Act (Pub. L. No. 103-465) amended IRC section 6109 to generally require that individuals include the taxpayer identification number of each dependent for whom an exemption is claimed, regardless of age, for taxable years beginning after December 31, 1994. Additionally, SSNs generally are required for the receipt of government aid or assistance. Children who have not been claimed on tax returns or have not received any government assistance may have needed SSNs for medical insurance purposes, savings accounts or other financial instruments, often within a short time after birth. Because most children generally will have an SSN before their first birthday, lowering the age for a mandatory interview is in accord with our goals for fraud prevention because additional interviewing will be done when a child does not obtain an SSN at a very early age.

Furthermore, our available data suggest that some individuals assigned SSNs prior to age 18 have obtained those SSNs fraudulently because we sought no additional development and documentation before assigning an SSN. This issue is addressed in two audits by our Inspector General, the May 28, 1999 “Management Advisory Report: Using Social Security Numbers to Commit Fraud #A-08-99-42002, which can be found at http://www.socialsecurity.gov/​oig/​office_​of_​audit/​audit1999.htm and “Procedures for Verifying Evidentiary Documents Submitted with Original Social Security Number Applications” which can be accessed at http://www.socialsecurity.gov/​oig/​ADOBEPDF/​A-08-98-41009.pdf. Lowering the age at which additional documentation is required should limit further occurrences of fraudulently obtained SSNs for children. This form of SSN misuse can impact all levels of government in the form of illegal employment and fraudulent entitlement to government benefits and services. In addition, an SSN improperly assigned could be used to defraud creditors and other businesses.

Although children generally need an SSN at an early age, we rejected setting the threshold at an age younger than 12 because requiring the presence of younger children at in-person interviews would be overly burdensome on the children and unproductive for SSA, even with the parent in attendance.

Evidence of Identity

We are changing § 422.107 of our regulations to eliminate the provision to waive the requirement for evidence of identity for children under age 7 when an original application for an SSN is filed. Evidence of identity is required for all SSN applicants, regardless of age. Thus, an SSN will not be assigned to a child under age 7 without all the evidentiary requirements being met. Such evidence requirements also have a direct correlation with the prevention of fraud. Through convincing documentary evidence of identity, the individual's continued existence is established in our records, thus limiting opportunities for fraud such as identity theft.

We are clarifying that the identity document should contain sufficient biographical or physical information to identify the applicant (e.g., contain the applicant's name plus age, date of birth, or parents' names and/or a photograph or physical description). Identity documents containing biographical or physical data can be used for comparison with data we already have or with other documents the applicant may submit in connection with the application for an SSN card. A birth record is not sufficient evidence to establish identity. In a 2000 audit, “Procedures for Verifying Evidentiary Documents Submitted with Original Social Security Number Applications (#A-08-98-41009),” SSA's Inspector General indicated that SSA assigned SSNs to individuals whose U.S. birth certificates were counterfeit. Individuals typically posed as the mothers of nonexistent children and presented counterfeit birth certificates as evidence. This audit can be found at http://www.socialsecurity.gov/​oig/​ADOBEPDF/​A-08-98-41009.pdf. Requiring an identity document other than a birth certificate will make it harder for fraudulent applicants to obtain SSNs under a fictitious identity because they must obtain additional evidence. This requirement should not unduly burden legitimate applicants because sufficient proof of identity, such as a medical record or school record, will normally exist, even for very young children.

The pilot project on providing replacement SSN cards by telephone, which we were conducting on the issuance of duplicate SSN cards for U.S. citizens, has been completed. Therefore, we are removing from § 422.107(c) the rules pertaining to this pilot.

Public Comments and Responses

On March 26, 2003, we published a notice of proposed rulemaking in the Federal Register (68 FR 14563) that led to these final rules. We provided a 60 day comment period. During this period, we received over 60 comments from interested individuals, organizations, two States and a foreign government. We carefully considered all of the comments we received and provide our responses to those comments below. While we have condensed, summarized, or paraphrased the comments, we have tried to present all views adequately and to respond to all the relevant issues raised by the commenters.

Valid Nonwork Reason

Comment: Several commenters expressed their concern that the elimination of the need for a driver's license as a “valid nonwork reason” for obtaining an SSN presents a hardship for spouses of employment-authorized aliens and for States that rely on the SSN as a unique identifier. Specifically, these commenters indicated that, because some States still require an SSN from all drivers’ license applicants, the need for a drivers” license should remain a “valid nonwork reason” for the assignment of an SSN. These commenters include numerous members of the general public as well as representatives from the State of Illinois, the State of Pennsylvania, the Government of Japan, the American Immigration Lawyers Association, the National Council of La Raza, the American Council on International Personnel, the Brazilian Immigrant Center, and three Japanese Chambers of Commerce in the U.S., and other organizations, and counsel for the plaintiffs in Sonali Iyengar v. Jo Anne B. Barnhart, Civil Action No. 02-0825 (ESH) in the U.S. District Court for the District of Columbia.

Response: We are changing our policy based on the guidance provided by investigative authorities that show that some non-citizens assigned SSNs for nonwork purposes misuse those SSNs. Our experience has revealed that fraud and misuse regarding SSNs for nonwork purposes has been almost exclusively in relation to SSNs issued for driver licensing. SSN misuse can impact all levels of government in the form of illegal employment in the U.S., fraudulent entitlement to Federal and State benefits and services, and identity theft. It may also help illegal aliens, including those who are lawfully admitted but overstay the period of their lawful entry, to integrate into U.S. society.

Moreover, the primary use of SSNs is for SSA to track earnings over a worker's lifetime. As steward of the SSN, one of our chief concerns is to do all we can to prevent SSN fraud and misuse. This rule change will help prevent this type of SSN fraud and misuse, and in doing so, help protect the American public by enhancing homeland security.

Meanwhile, we do plan to continue assigning SSNs for entitlement to federally-funded benefits (as required by Federal statute) and to State and local public assistance programs for non-citizens in lawful status in deference to State and local statutes requiring SSNs. Our experience shows that the SSNs assigned for these programs have not been misused.

We acknowledge that our definition of a “valid nonwork reason” may present a challenge to some aliens without work authorization. We have encouraged States to develop an alternative identifier for several years, and our efforts have been met with considerable success as many States that previously required an SSN for all drivers' license applicants no longer do. In 1997, there were 17 States that required an SSN from all applicants for a driver's license. Currently, there are only seven States that have laws requiring an SSN for all drivers’ license applicants. Furthermore, four of those States were previously able to implement systems of alternative identification during the period of March 1, 2002 through December 6, 2002 when SSA was not assigning SSNs for driver's license purposes. Additionally, we have, with the assistance of the American Association of Motor Vehicle Administrators and the support of the U.S. Department of Transportation, combined efforts to assist States that require SSNs for driver licensing and motor vehicle registration purposes to develop alternative identifier systems to accommodate individuals not authorized to work in the U.S. As issuing drivers’ licenses is a State function, we continue to urge those few remaining States that require an SSN from all drivers’ license applicants to develop an alternative identifier for those individuals affected by this rule change.

Finally, we believe that while section 466(a)(13) of the Social Security Act, 42 U.S.C. 666(a)(13) concerning the recording of SSNs on driver's licenses and other documents, does require that States have procedures which require recording an individual's SSN that he or she may have, this section of the Act does not require that an individual be issued an SSN if the person is not otherwise eligible for one as a condition of receiving a license. This interpretation of 42 U.S.C. 666(a)(13) is also held by the Department of Health and Human Services, Office of Child Support Enforcement (OCSE), which enforces this statutory provision. See the memorandum from the Commissioner of OCSE, dated July 14, 1999 at http://www.acf.dhhs.gov/​programs/​cse/​pol/​piq-9905.htm.

Comment: Numerous commenters expressed their concerns that aliens without work authorization often have difficulties obtaining goods or services without an SSN. Specific concerns mentioned by commenters include difficulty in obtaining cell phones, credit cards, mortgages, bank accounts, marriage and professional licenses, various forms of insurance, admission to academic institutions and financial aid for student loans.

Response: None of the concerns raised by these commenters are affected by this rule change, as none of these examples previously represented a “valid nonwork reason” for obtaining an SSN.

We understand that some States and private entities sometimes request or require an SSN for the various services mentioned by the commenters. However, as described in our response to the previous set of comments above, the primary use of SSNs is for SSA to track earnings over a worker's lifetime.

In-Person Interview

Comment: One individual commented that age 12 is too young for a child to appear for a personal interview. The commenter indicated that the Bureau of Citizenship and Immigration Services does not require children under age 14 to be fingerprinted. In addition, the Legal Aid Foundation of Los Angeles said that the proposal to require minors age 12 and up to appear for an in-person interview was inappropriate because a minor was unlikely to have personal knowledge as to why an SSN was not issued earlier or to otherwise properly represent themselves in an interview setting. Additionally the Legal Aid Foundation of Los Angeles indicated that not all children had photo identification or other documents that could be used as evidence of identity.

Response: We are lowering the mandatory interview age because our data suggest that some SSNs assigned prior to age 18 are at higher risk for fraud. By establishing the need for additional development and documentation at an earlier age, we will eliminate this opportunity for fraud.

SSN fraud can impact all levels of government in the form of illegal employment and fraudulent entitlement to government benefits and services. In addition, an SSN improperly assigned could be used to defraud creditors and other businesses.

We believe that the proposed age 12 threshold for in-person interviews provides a balance between allowing us to screen effectively for a prior SSN without being overly burdensome on the children or their parents. In setting the age 12 threshold, we considered that it was rare for individuals to obtain an SSN for the first time as late as 12 years of age because children must have SSNs to be shown as dependents on Federal Income Tax Returns and to receive most Federal and State benefits. However, we rejected setting the threshold at a younger age because we felt that requiring the presence of younger children at in-person interviews would have been overly burdensome on the children and unproductive for SSA, even with the parent in attendance. Furthermore, while the commenter states that a child would not have the knowledge to answer these questions, we anticipate that these interviews will be conducted with the parent/authorized representative and the child.

We acknowledge that children are not required to appear in person when applying for a U.S. passport when they are under age 14. However, a U.S. passport is generally not required to function in U.S. society, while an SSN is generally needed shortly after birth to be listed as a dependent on a Federal Income Tax Return or to obtain general public assistance benefits. Therefore, we believe that it is appropriate to require additional screening when a 12-year-old has not obtained an SSN previously.

Relative to evidence of identity, we agree that not all children will have photo identification. We do not require that individuals provide photo identification to obtain an SSN. Very young children may have clinic or hospital records, church or daycare records or records from a social services organization which can be used to establish identity. Furthermore, parents are offered the opportunity to apply for the SSN during the birth registration process at the hospital or with the mid-wife. In this scenario, the parent does not have to do or provide anything other than his or her acceptance for an SSN to be assigned.

Other Comments

In response to one comment suggesting that our proposed language in § 422.104(a)(3)(i) and (ii) lacked specificity, we added the word “otherwise” prior to the phrase “established entitlement.” This change clarifies that the alien requires an SSN to fully establish entitlement and that merely meeting the other established criteria is not sufficient to receive the benefit. Additionally, we rewrote some of the language in § 422.104(a)(3) to improve clarity but did not change the substance. We also added the phrase “such as” prior to “NOT VALID FOR EMPLOYMENT” in § 422.104(a)(3)(b) to allow for future changes in the precise language of the legend. We also changed the name “Immigration and Naturalization Service” to “Department of Homeland Security” to reflect the new organization that administers immigration matters. Finally, we added information throughout the preamble to more fully explain our proposed rule changes.

Changes in the Final Rules

Other than the changes described under “Other Comments” above we have made no changes from the proposed rules.

Regulatory Procedures

Executive Order 12866, as Amended by Executive Order 13258

The Office of Management and Budget (OMB) has reviewed these rules in accordance with Executive Order 12866 as amended. We have also determined that these rules meet the plain language requirement of Executive Order 12866.

Regulatory Flexibility Act

We certify that these rules would not have a significant economic impact on a substantial number of small entities because they would affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

Federalism

We have reviewed these regulations under the threshold criteria of Executive Order 13132 and have determined that they would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. As noted above, we will continue assigning SSNs for State general assistance benefit-related purposes. The impact is limited to those States that have not developed an alternative system for identifying individuals who are seeking drivers' licenses and are not eligible for SSNs.

Paperwork Reduction Act

These rules contain reporting requirements in § 422.107. We have been collecting this information under Office of Management and Budget (OMB) Number 0960-0066, using Form SS-5 (Application for SSN Card) and from State Bureaus of Vital Statistics (BVS) through the enumeration at birth process. However, the changed reporting requirements in § 422.107, described above, and the revised form will require clearance from OMB under the Paperwork Reduction Act of 1995. An Information Collection Request has been submitted to OMB for clearance.

We solicited comments on: The burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security-Disability Insurance; 96.002, Social Security-Retirement Insurance; 96.004, Social Security-Survivors Insurance; and 96.006, Supplemental Security Income)

List of Subjects in 20 CFR Part 422

• Administrative practice and procedure
• Blind
• Disability benefits
• Old-age
• Survivors and Disability Insurance
• Reporting and recordkeeping requirements
• Social security

Dated: June 19, 2003.

Jo Anne B. Barnhart,

Commissioner of Social Security.

For the reasons set out in the preamble, we are amending part 422, subpart B, chapter III of title 20, Code of Federal Regulations as follows:

PART 422—ORGANIZATION AND PROCEDURES

Subpart B—[Amended]

1. The authority citation for subpart B of part 422 continues to read as follows:

Authority: Secs. 205, 232, 702(a)(5), 1131, and 1143 of the Social Security Act (42 U.S.C. 405, 432, 902(a)(5), 1320b-1, and 1320b-13).

2. Revise § 422.104 to read as follows:

§ 422.104

Who can be assigned a social security number.

(a) Persons eligible for SSN assignment. We can assign you a social security number if you meet the evidence requirements in § 422.107 and you are:

(1) A United States citizen; or

(2) An alien lawfully admitted to the United States for permanent residence or under other authority of law permitting you to work in the United States (§ 422.105 describes how we determine if a nonimmigrant alien is permitted to work in the United States); or

(3) An alien who cannot provide evidence of alien status showing lawful admission to the U.S., or an alien with evidence of lawful admission but without authority to work in the U.S., if the evidence described in § 422.107(e) does not exist, but only for a valid nonwork reason. We consider you to have a valid nonwork reason if:

(i) You need a social security number to satisfy a Federal statute or regulation that requires you to have a social security number in order to receive a Federally-funded benefit to which you have otherwise established entitlement and you reside either in or outside the U.S.; or

(ii) You need a social security number to satisfy a State or local law that requires you to have a social security number in order to receive public assistance benefits to which you have otherwise established entitlement, and you are legally in the United States.

(b) Annotation for a nonwork purpose. If we assign you a social security number as an alien for a nonwork purpose, we will indicate in our records that you are not authorized to work. We will also mark your social security card with a legend such as “NOT VALID FOR EMPLOYMENT.” If earnings are reported to us on your number, we will inform the Department of Homeland Security of the reported earnings.

3. Section 422.107 is amended by revising paragraphs (a) and (c) to read as follows:

§ 422.107

Evidence requirements.

(a) General. An applicant for an original social security number card must submit documentary evidence that the Commissioner of Social Security regards as convincing evidence of age, U.S. citizenship or alien status, and true identity. An applicant for a duplicate or corrected social security number card must submit convincing documentary evidence of identity and may also be required to submit convincing documentary evidence of age and U.S. citizenship or alien status. An applicant for an original, duplicate, or corrected social security number card is also required to submit evidence to assist us in determining the existence and identity of any previously assigned number(s). A social security number will not be assigned, or an original, duplicate, or corrected card issued, unless all the evidence requirements are met. An in-person interview is required of an applicant who is age 12 or older applying for an original social security number except for an alien who requests a social security number as part of the immigration process as described in § 422.103(b)(3). An in-person interview may also be required of other applicants. All documents submitted as evidence must be originals or copies of the original documents certified by the custodians of the original records and are subject to verification.

* * * * *

(c) Evidence of identity. An applicant for an original social security number or a duplicate or corrected social security number card is required to submit convincing documentary evidence of identity. Documentary evidence of identity may consist of a driver's license, identity card, school record, medical record, marriage record, passport, Department of Homeland Security document, or other similar document serving to identify the individual. The document must contain sufficient information to identify the applicant, including the applicant's name and (1) the applicant's age, date of birth, or parents’ names; and/or (2) a photograph or physical description of the individual. A birth record is not sufficient evidence to establish identity for these purposes.

* * * * *