[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]
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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.
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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