I haven’t done much work in the area of immigration law, but I had an interesting question come across my desk this morning:

An existing employee that is apparently going through the legalization process came forward with a new social security number.  The problem for the client is that the client already had a different social security number for the individual, which was presumably provided during the application process several years ago.

At first blush, I am afraid that the client will be violating the anti-discrimination provision of the INA by making a big deal about the social security documentation.

Can anyone offer me some guidance while I research the issue?  Thanks…

Jonathan F. Cohen, Esq.
APRUZZESE, McDERMOTT,
  MASTRO & MURPHY,
P.C.
Somerset Hills Corporate Center
25 Independence Boulevard
P.O. Box 112
Liberty Corner, NJ 07938
Tele: (908) 580-1776
Fax: (908) 647-1492
email:  .(JavaScript must be enabled to view this email address)

Working for an employment screening company for some time now, I don’t recall anyone coming through with a “temp” social security number.  The understanding has been if you have received one it is yours for life and anything short of a religious objection to the number, or a stalker issue the administration does not issue individuals a new number.  This will warrant a compete check, the original number might have been fraudulent in order to obtain the job.  If fraudulent is that falsification of an application?

Good Luck,

Mike

SSA has provided some pretty specific documentation on this matter when you receive notification or learn of a “bad” SSN.  I’d be concerned about what I perceive to be the bigger problem - that the employee was illegally using another’s SSN during the years while he/she has been working for your client.  That’s another matter altogether.  Falsification during the employment process, etc.

What you can’t do is “knowingly” employ an unauthorized worker.

Employees may have legitimate reasons to change social security numbers. For example, some victims of domestic violence change their names and social security numbers to avoid their harassers. So, a company should not assume that employees who supply a new number falsified their original number.

But, if a company learns that employees have given a false social security number (or someone else’s number), they may be disciplined or fired.

If a company learns that an employee’s social security number has changed or is incorrect, it must:
1. use the correct number in the future, and
2. if earnings were reported to an incorrect number, file IRS Form W-2c “Statement of Corrected Income and Tax Amount.”

I’d also note that (in a situation involving a “no match” letter from the SSA, warning an employer about an employee’s SSN problem), a Court wrote: “In fact, the SSA tells employers that the information it provides them ‘does not make any statement about immigration status’ and ‘is not a basis, in and of itself, to take any adverse action against the employee’” and that employers “should not use the mismatch letter by itself as the reason for taking any adverse employment action against any employee.” Aramark v. SEIU (9th Cir. 2008) no. 06-56662

Wow, I really appreciate the assistance.  I am very happy I posted this question on here!