SSA Office Closures And The Impact On SSN Issuance For Foreign Nationals

With the closure of Social Security Administration (SSA) offices in the wake of COVID-19, we are receiving questions concerning the impact on work authorization for individuals who may have recently entered the U.S. in a temporary work authorized visa status, i.e. H-1B, L-1, TN, E etc.

While the Social Security Number (SSN) is used and required, in a variety of areas, it is not mandatory to be presented as proof of work authorization. Specifically foreign nationals residing in the U.S., in a work-authorized status, may begin or continue employment with or without being in possession of a SS Card provided they can present acceptable documents required for Form I-9 eligibility. While certain HRIS systems prompt a SSN to be input as the primary identifier, a distinction should be made between those requirements and the Form I-9. In fact, unless an employer participates in E-Verify, the SSN is not required for the Form I-9. The question about employment authorization and SSNs is also different from questions relating to IRS guidance and reporting requirements. Employers should work with payroll and accounting to ensuring proper reporting and withholding of wages. The IRS Hiring Employees guidance notes that: "You are required to get each employee's name and Social Security Number (SSN) and to enter them on Form W-2. (This requirement also applies to resident and nonresident alien employees.)"

As it relates to employment authorization specifically, delays in SSN issuance should not prevent a U.S. company from placing an individual on payroll. The US Citizenship and Immigration Service (USCIS), and not the SSA, approves employment for foreign nationals. A foreign national's I-94 card depicting the status and validity dates is one of documents (List C) that may be presented to verify an individual's status in the U.S. and corresponding employment authorization. This means employment may begin upon presentation of the appropriate Form I-9 document(s) which may include a foreign passport and valid I-94 card, irrespective of the status of an application for a SSN.

For H-1B employers, it is also important to remember that the H-1B carries wage obligations and liabilities. A lack of a SSN will not waive the wage obligations. As a practical matter, when on-boarding a new employee without a SSN, employer should discuss available options with the payroll administrator.

For employers that are enrolled in E-Verify, a SSN is required to complete an E-Verify query. Where an employee, completing Section 1 of the Form I-9, does not yet have a SSN, and the employer uses E-Verify, the instruction is to leave the field blank, and delay the E-Verify query. Recent instructions from an E-Verify representative noted that in the case of COVID-19 delays, the employer may complete the verification process once the employee receives the SSN, as follows:

• Have the employee update Section 1 with the SSN, initialing and dating the addition.
• Submit the E-Verify query and note "Awaiting Social Security Number" as the reason for the delay in the dropdown box.
  • Where possible you can add a note "SSA office closed due to Coronavirus-unable to obtain SSN"

If the employer is not enrolled in E-Verify and completes only the Form I-9, there is no need to request the SSN. Further guidance on ensuring continued compliance with the I-9s and the E-Verify program is available in our earlier post, E-Verify COVID-19 Guidance on Expired Driver's Licenses and State IDs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.