During 2019, more than half a million employers have already received social security no-match letters. The Social Security Administration had discontinued sending “no-match” letters (Employer Correction Request Notices – EDCOR) in 2011, but during 2019, the SSA is determined to send no-match letters to each and every employer in the U.S. who reported at least one employee with a name and social security number that did not match its records.
While the Social Security Administration itself is not an enforcement agency, and cannot penalize employers who do not respond to no-match letters, if an employer fails to take corrective action after receiving a no-match letter, and ICE (Immigration and Customs Enforcement) does a Forms I-9 audit, the employer’s lack of action may be considered constructive knowledge that the employee lacks work authorization.
What should an employer do upon receiving a no-match letter? The employer first needs to check its own records and see if there was a typographical error, or perhaps a name change. If it was merely a typo, the employer should contact SSA to make the correction. The employer should keep records of its contacts with SSA and attempts to fix the problem, to show ICE later on in case of audit. The employer should also keep a record once the SSA verifies the social security number and information. The SSA has online resources to help employers who have received a no-match letter, https://www.ssa.gov/employer/notices.html
An ICE regulation (not in effect due to litigation) states that 30 days is a reasonable period of time for the employer to make corrections. However, the SSA no-match letters themselves state to look into the problem and make corrections online with their BSO (Business Services Online) within 60 days. The DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices recommends that employers provide employees a “reasonable period of time” to correct their information with SSA, without specifying how long is “reasonable”. The DOJ cautions that employers must not use a no-match letter as a basis to terminate, suspend or take any other adverse action against an employee. The employee must be provided the opportunity to fix the problem. See, https://www.justice.gov/sites/default/files/crt/legacy/2014/12/04/Employers.pdf
If it is not so simple as a typo or name change, the employer must request the employee to follow up with the appropriate agency, either the SSA or with DHS. One possibility is that the employee has been using an ITIN (Individual Taxpayer Identification Number). An ITIN is a number allowing a nonresident alien who lacks a social security number, to pay their taxes to the IRS. See, https://www.irs.gov/individuals/individual-taxpayer-identification-number. It is a legitimate number, but it cannot be used as a substitute for a social security number. If the work is already performed, then the worker would have to be paid as an independent contractor and issued a 1099 at the end of the year rather than a Form W-2. The employer should consult a CPA or tax lawyer to figure out the best course. However the employer must keep in mind that an ITIN number does not give the employee work authorization, and that ICE may deem them to have had constructive knowledge that their worker lacked work authorization. The employer could end up having to pay very high fines for employing an unauthorized worker.
Many employers feel hard-pressed to find US workers. Rather than pay an undocumented person on the books, in addition to hiring unauthorized workers, the employers also pay the workers in cash and do not report part of their income to the IRS. This makes the situation even worse for the employer. Not only are they knowingly employing an unauthorized worker, but the employer may be charged with tax evasion and money laundering, and face criminal charges. For example, in 2016, two owners of a dry cleaners in New Jersey, were sentenced to more than one year prison and three years supervised release for failing to report the wages of undocumented workers and failing to pay payroll taxes, as well as for alien harboring, as they had the undocumented workers live in a house that they owned. See, https://www.irs.gov/compliance/criminal-investigation/examples-of-employment-tax-fraud-investigations-fiscal-year-2016 . So, it is always better to pay on the books and report all income to the IRS.
On the employee’s side, there are grave consequences to using someone else’s social security number and ID. Number one, if the employee mis-represents himself as a US citizen on the Form I-9, ICE can charge him with inadmissibility for which there is currently no waiver. See, INA 212(a)(6)(C)(ii)(I). Misrepresenting oneself as a U.S. citizen is a permanent bar to receiving any immigration benefit, other than perhaps withholding under the Convention Against Torture. Or, if the employee misrepresents himself as a permanent resident or as having work authorization, he again will be subject to another ground of inadmissibility for fraud and misrepresentation in procuring an immigration benefit. See, INA (212)(a)(6)(C)(i). There is a waiver available, however, only if the employee can show extreme hardship to a US citizen or permanent resident spouse or parent should they be deported from the U.S. Having US citizen children does not qualify you for a fraud waiver.
Second, the worst part about using someone else’s social security number is that you may be charged under federal criminal statutes. 18 USC 1546 applies to fraud and misuse of visa and immigration documents. 18 USC 1546(b) criminalizes the use of someone else’s ID, including for the purpose of showing work authorization.
A case currently pending before the U.S. Supreme Court, Kansas v. Garcia, Docket No. 17-834, involves several undocumented workers who used someone else’s ID in filling out I-9 forms. The lead respondent, Ramiro Garcia, a cook for a restaurant, Bonefish Grill, used someone else’s social security number when filling the I-9, W-2 and state K-4 Forms required upon hiring. The State of Kansas criminally charged Mr. Garcia with using a social security number belonging to another person in order to establish work authorization. A state jury convicted him of identity theft. The other respondents had similar stories.
The Kansas Supreme Court however, held that federal law expressly preempts state prosecutions of individuals who use another’s ID to show that federal law authorizes them to work, relying on the plain language of 8 U.S.C. 1324a(b)(5): “It is Congress’ plain and clear expression of its intent to preempt the use of the I-9 form and any information contained in the I-9 for purposes other that those listed in Section 1324a(b)(5)”. The Kansas Supreme Court held that federal law precludes a state from using not just the I-9 form but also all the information contained in the I-9 form as the basis for a state identity theft prosecution.
The question before the US Supreme Court is “(1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents” See, https://www.scotusblog.com/case-files/cases/kansas-v-garcia/
The third serious consequence is that workers who use another’s social security number or just an incorrect social security number, will not have their wages credited towards social security benefits later on when they retire. Thus, they will be missing out on a possibly large amount of money in their old age. They will also not be eligible for an exemption from the affidavit of support requirements, which provide that beneficiaries with at least ten years of social security-reported income are exempt from having the petitioner in a family petition filing an affidavit of support on their behalf.
Copyright 2019 © Heidi J Meyers, all rights reserved.
On October 11, 2019, the US Department of State (“State Dept”) published a new public charge rule, to go into effect in 60 days, which applies to almost all immigrant visa applications. See, 84 Fed.Reg. 198, at 54996-55015. The new State Dept rule closely tracks the DHS public charge rule, which is currently enjoined by a federal court. For the time being, all applicants for adjustment who apply within the US to USCIS for their greencards are still subject to the old rule, which relies on the affidavit of support and a mathematical formula.
Even though the federal court has prohibited DHS from implementing their public charge rule until a final decision on the case, the State Dept is a separate government agency, and the federal court injunction does not apply to it. The State Dept processes immigrant visas for foreign nationals outside the U.S. Once they have an interview at the US Consulate abroad and receive their immigrant visa, they then enter the US as permanent residents.
The Consular Officer (“CO”) must consider all positive and negative factors in the “totality of the circumstances”, to determine if the applicant is likely to become a public charge “at any time”. The State Dept rule closely tracks the new DHS rule, and creates positive and negative factors for the Consular Officer to consider. Factors include the following:
1) Health and health insurance are prominent among the factors. Having health insurance (or prospect of obtaining private health insurance) or the “financial resources to pay for reasonably foreseeable medical costs” is repeatedly underlined as important, when discussing various factors. The State Dept considers as a heavily weighted negative factor, should the applicant require “extensive medical treatment or institutionalization or the condition will interfere with the alien’s ability to provide care for him-or herself, to attend school or to work” and lacks health insurance or the resources to pay for medical care. Chronic medical conditions or existing medical conditions will also require an applicant to obtain health insurance, to avoid it being a strongly negative factor.
In addition to the State Dept rule, President Trump’s Presidential Proclamation, issued October 4th, to take effect November 3, 2019, requires all immigrant visa applicants to prove they will be covered by health insurance within 30 days of their entry into the U.S.
2) Age, being between the ages of 18 and 62 is a positive factor, while being under 18 or over 62 is a negative factor. The support provided to a minor by a parent or legal guardian may offset this negative factor. The CO must consider whether the applicant’s age makes him or her unlikely to obtain work or create higher potential health care costs.
3) Education and skills. The applicant’s level of education, work history, any job skills, certifications or licenses and English proficiency.
4) The size of the household, “family status”. Aside from a few vague words, it is unclear how consular officers are to judge different family sizes. How many children can a family have before it is ‘too big’? Would a single parent household be considered ‘too small’? Again, because the language is vague, different COs will interpret it in very different ways.
5) Assets, resources and financial status. The rule restates the prior test, which is whether household income is at least 125% of the poverty level, as well as how to counts assets towards the income requirement.
However, this part of the rule is made more complicated because in another section, having an income of at least 250% of the federal poverty level is considered a heavily weighted positive factor. Will the 250% become the new standard, rather than the 125%? It is unclear how to reconcile these two aspects of the rule.
6) Not working or being a fulltime student if you have work authorization, lacking a work history, lacking prospects of future employment, are all negative factors. Being a primary caregiver for a family member is considered a positive factor, and it is unclear how these two factors should be balanced one against the other.
7) Public benefits. Not only if the applicant has actually received public assistance, but also whether they have ever even applied (including those who were denied public benefits and never actually received them).
A heavily-weighted negative factor is if the applicant has received or been approved to receive, one or more public benefits for more than 12 months in the aggregate during any 36-month period, or two benefits during a six-month period beginning October 15th 2019, or 36 months prior to adjudication of the applicant’s immigrant visa, whichever is later.
In the past, only cash public assistance was considered. Now the State Dept will consider many forms of non-cash public assistance including any federal, state, local or tribal cash assistance; SSI (Supplemental Security Income); TANF (Temporary Assistance for Needy Families); Food stamps – supplemental nutrition assistance program; Public housing and Section 8.
There are exceptions that allow pregnant women (up to 60 days after giving birth) and children under 21 to receive Medicaid, emergency medicaid, Medicaid received by the disabled; school-based services up through high school. There is an exemption from the public benefit definition for enlisted members of the US Armed Forces, or in the Ready Reserve, and their immediate family members
8) Applying for a USCIS fee waiver is a negative factor. Thus, if you have applied for a USCIS fee waiver in the past, this may be considered a negative factor. Only fee waiver applications after the October 15th effective date will be considered.
The new State Dept rule changes the public charge determination from an objective mathematical formula based on household size and total income, to a subjective decision, “in the opinion of” the CO, using numerous factors, and no clear path on how to apply or balance one factor against another. This will lead to unpredictable, subjective, wildly different decisions and a huge increase in denials of immigrant visas based upon the public charge ground of inadmissibility. It is another way to deny many meritorious immigrant applications, separating families and punishing immigrants for their very existence.
Copyright 2019 © Heidi J Meyers, all rights reserved.