Can I see your Social Security card?

With the federal government's recent focus on immigration, particularly the recently increased enforcement policy of Immigration and Customs Enforcement, the enforcement arm of the Department of Homeland Security (DHS), many roofing contractors are revisiting how they complete I-9 forms to ensure they comply with all legal requirements. One issue that continues to confuse roofing contractors when completing I-9 forms is whether they can ask employees to provide Social Security cards.

According to U.S. immigration law, you cannot require employees to produce specific documents, such as a Social Security card, when completing I-9 forms. Indeed, an employee can produce documentation meeting I-9 requirements without ever producing a Social Security card. Does this mean you are prohibited from asking to see Social Security cards? Not necessarily. Remember, in addition to having to comply with immigration laws, you also are obligated to comply with the requirements of the Social Security Administration (SSA) and Internal Revenue Service (IRS).

Clash of departments

Although DHS, SSA and IRS rules intersect, to avoid claims of wrongful termination or national origin discrimination, it is important for you to handle your obligations under SSA laws and IRS rules separately from obligations under immigration laws.

For starters, you or your human-resources staff should verify employment eligibility for immigration requirements and your payroll department should handle compliance with the requirements of Social Security laws and tax laws. Also, documents for tax purposes (W-2 or W-4 forms) should be kept in personnel files and all I-9 documentation should be kept separately from personnel files.

For tax purposes only—completely unrelated to I-9 requirements—the IRS requires you to obtain each employee's name and Social Security number because this information must be entered on W-2 forms. This requirement applies to resident and nonresident employees. Although you are permitted to ask an employee to produce a Social Security card, employees are not required to do so; they simply need to supply a number.

But employees, including nonresidents, are not required to have Social Security numbers before starting work. What are you supposed to do?

How to get a number

Before nonresidents can apply for Social Security cards, they must have documents from DHS showing their immigration status and eligibility to work in the U.S. When applying for cards, nonresidents must provide SSA with the I-94 Arrival/Departure Record issued to them upon arrival in the U.S. For most foreign workers, the I-94 form proves work eligibility. Some foreign workers also must show a work permit card from DHS (I-766 or I-688B forms).

In addition, nonresidents must prove age via a birth certificate or other document, such as a passport or document issued by DHS, and identity, which can be proved a variety of ways, including Form I-551, Form I-94 with an unexpired foreign passport or a work permit card from DHS.

SSA will verify all documents with DHS before a Social Security number is assigned. In most cases, verification by DHS occurs quickly online. In other cases, it may take several weeks for a response.

Once an employee has all the necessary documents, instruct the employee to apply for a Social Security number within seven days of employment and return to work with a letter or receipt from SSA stating an application has been filed. The employee should be instructed to provide you with the number as soon as it is received. It is not illegal to refuse to hire someone who refuses or fails to supply a Social Security card or number as long as you apply such a policy uniformly to all employees.

An employee who does not have a Social Security number at the time employment commences must furnish a completed and signed SS-5 form. You, in turn, must inform the employee he is required to file a second SS-5 form with SSA within seven days after beginning employment. When the employee produces either a Social Security card or receipt showing an application has been filed, you will return the initial SS-5 form.

If the employee has not presented a receipt, ask the employee whether an attempt was made to apply for a number. You can allow the employee an additional seven days if, for reasons beyond the employee's control, the employee was unable to apply for a number.

If the employee has made no attempt to apply for a number and shows no intention of doing so, you have different obligations.

If you choose to terminate the employee, be sure you apply your policy uniformly. Otherwise, file a statement in writing with an SSA district office, providing all the information on the SS-5 form you obtained from the employee at the time of hire and noting the employee refused to file an application for a Social Security number. A Social Security number then will be assigned to the employee and communicated to you.

If a W-2 form needs to be filed and the employee does not have a Social Security number but has a receipt from SSA, you can write "applied for" on the form. A Corrected Wage and Tax Statement can be filed when the number is received. If the employee does not have a receipt before it is time to file the W-2 form, you are required to attach to the employee's W-2 form a completed SS-5 form signed by you.

Incorrect numbers

If you do not provide correct names and Social Security numbers on W-2 forms, you may be penalized $50 for each incorrect number unless you have reasonable cause. To prove reasonable cause, you must show you acted responsibly before and after the incorrect name and number were discovered. You also must establish there were significant mitigating factors (for example, you have an established history of filing returns with correct names and numbers) or the incorrect name and number were a result of events beyond your control (for example, the employee did not provide a correct name and number when you requested it).

To help you avoid providing wrong numbers, SSA has set up an enumeration verification system at www.ssa.gov/employer/ssnv.htm to allow employers to check employee name and number data against SSA records before completing W-2 forms.

Be fair and consistent

Because of various laws, you are required to obtain a Social Security number from each new hire. If you desire to implement a policy of terminating employees whose Social Security numbers cannot be verified by SSA, it would be wise to include on job applications, offer letters and other similar documents a statement saying that for tax purposes, a valid Social Security number is required on the first day of work; the Social Security number will be verified; and if the number cannot be verified by SSA, it is grounds for immediate termination.

Most important, if you are going to implement such a policy, be sure to apply it uniformly to all new hires to avoid claims of wrongful termination or national origin discrimination.

Philip J. Siegel is an attorney with the law firm Hendrick, Phillips, Salzman & Flatt, Atlanta.