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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: September 25, 2003 (Volume 68, Number 186)]
[Rules and Regulations]               
[Page 55304-55308]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25se03-3]                         

=======================================================================
-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 422

[Regulation No. 22]
RIN 0960-AF05

 
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

[[Page 55305]]

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, ((410) 966-5665, arthur.laveck@ssa.gov or (410) 966-7094, karen.r.cool@ssa.gov) or TTY (410) 966-5609. 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 Sec.  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:
    [sbull] 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
    [sbull] 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 
Sec.  422.104.

In-Person Interview

    We are changing Sec.  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:
    [sbull] 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.
    [sbull] 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.
    [sbull] A 12-year old may be able to provide answers to some 
questions without parental assistance.
    [sbull] 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

[[Page 55306]]

SSA, even with the parent in attendance.

Evidence of Identity

    We are changing Sec.  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 
Sec.  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

[[Page 55307]]

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 
Sec.  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 Sec.  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 Sec.  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 Sec.  422.107. We 
have been collecting this information under

[[Page 55308]]

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 Sec.  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.

0
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]

0
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).


0
2. Revise Sec.  422.104 to read as follows:


Sec.  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 Sec.  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 (Sec.  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 Sec.  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.

0
3. Section 422.107 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec.  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 Sec.  
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.
* * * * *
[FR Doc. 03-24221 Filed 9-24-03; 8:45 am]
BILLING CODE 4191-02-P




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