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Listserv Q&A for
"INS, DOS, DOL - The Search for Consistency "

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An issue came up from the first session that I would like to have resolved. From what I remember, one of the speakers stated that a person can start work even before the social security number is received.

We have an issue where INS has not updated its computer system and the individual on an H-1B has been denied the social security number because the system indicates that she is not on H-1B status. INS has stated that it will take them three to four weeks to update their system. In the meantime, the individual does not have a number and cannot be employed. How can the employer employ this H-1B worker without a social security number? Can they just list it as "pending" much like on a 1040 tax return? Any input would be highly appreciated.

Answer by Ron Klasko:

A person does not have to have a Social Security Number in order to work. In fact, there is a Treasury Regulation which specifically states that a person can present a receipt from the Social Security Agency for the filing of an SS-5 (Application for Social Security Number), and on the W-4 form, put "applied for" in the Social Security Number block. The employer then can wait to get an actual number for the person until the time of the employer's annual tax filings (in January).

The regulation is 26 CFR Sec. 31.6011 (b)-(2)(b)(1)(iii).