The first clause is perfectly acceptable to me, but I don't know what E-Verify is all about, I'll look into it, but this page doesn't have information yet. I do see a note that says E-Verify is optional itself. E-Verify requires a SSN, and given that the employer already has it for tax purposes, I don't see why he needs it on the I-9 form except for convenience. (E-Verify work can be farmed out to other businesses, and they may have nothing other than it I-9 form.)
The point of this page was to claim you don't have to include your SSN on the I-9 form, and given that the USCIS agrees, then feel free to go elsewhere. However, if you value your privacy, keep reading. My comments relevent to the new I-9 form are underlined.
Millions of Americans have come face-to-face with "identity theft." This can be as simple as a lost checkbook picked up by the local ne'er-do-well or as complex as assuming a stranger's identity and applying for credit cards and drivers licenses. One of the mantras that we frequently hear is "never give out your Social Security Number except for tax purposes."
This is easier said than done. Even my own government, one that should hold the Bill of Rights in great esteem, routinely asked for Social Security Numbers. And still does, with one place being the USCIS I-9 Employment Eligibility Verification form. This web page is in response to my employer of eleven years telling me I needed to fill out a new form. An audit disclosed some problem with several employees' forms, and each was told to fill out a new one, but not told what was wrong with the old form.
While the form is clear that Social Security cards are valid IDs, it doesn't require them for identification. However, there is a box in another section that asks for your Social Security Number, and that waved a red flag to me.
I decided to see if I really was required to include it, and my forays took me into various odd corners of the World Wide Web. I would like better dates of various events, names of various Acts, and definitive sources for various documents. For example, the I-9 form in question was last revised in 1991, I don't think restrictions on demanding Social Security Numbers went into effect until several years later. (It may be they were added as an amendment or in conference committee.) However, there is little to be gained by digging deeper. The new form was released in 2007.
Of course, a form filled out by millions of new employees each year ought to be current. That wasn't the case in 2004 when I first wrote this page when the form still referred to the old Immigration and Naturalization Service. That no longer exists, it's now the U. S. Citizenship and Immigration Services, a bureau of the Department of Homeland Security. I daresay that many aliens who have received services from the INS are hoping that US citizens will receive similar treatment.
When I updated this page in 2007, the I-9 form had been "rebranded" as a USCIS form, but apparently not much else has changed. Now there is a bit of a flap because the list of documents acceptable to the USCIS has changed, but the form hasn't. The major IDs haven't changed, so it doesn't affect most people.
While a social security card can be used to provide proof of eligibility to work (but not proof of identity, the USCIS likes ID cards with photos for that), other documents are acceptable. For example, a passport (current or expired) establishes both identity and eligibility. The I-9 form itself has a box for your Social Security Number. (The other data they ask for are name, address, maiden name, date of birth, and type of eligibility.)
Note that you can satisfy the spirit of the identity and eligbility checks without offering your Social Security Number. That they want it triggers a section of an amendment in the Privacy Act that mandates:
(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.(2) the (The) provisions of paragraph (1) of this subsection shall not apply with respect to -
(A) any disclosure which is required by Federal statute, or
(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.
(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.
Form I-9 does refer to the Act, but apparently just for the information in general:
The authority for collecting this information is the Immigration Reform and Control Act of 1986, Pub. L. 99-603 (8 USC 1324a).Let's pick through this piece by piece, looking at it from the standpoint of just Social Security Nummbers.This information is for employers to verify the eligibility of individuals for employment to preclude the unlawful hiring, or recruiting or referring for a fee, of aliens who are not authorized to work in the United States.
This information will be used by employers as a record of their basis for determining eligibility of an employee to work in the United States. The form will be kept by the employer and made available for inspection by officials of the U.S. Immigration and Naturalization Service, the Department of Labor and the Office of Special Counsel for Immigration Related Unfair Employment Practices.
Submission of the information required in this form is voluntary. However, an individual may not begin employment unless this form is completed, since employers are subject to civil or criminal penalties if they do not comply with the Immigration Reform and Control Act of 1986.
The authority for collecting this information is the Immigration Reform and Control Act of 1986, Pub. L. 99-603 (8 USC 1324a).
In my first reading of this Act, there are references to Social Security Numbers for identification purposes, but there is no text that grants the USCIS the right to demand a Social Security Number.
This information is for employers to verify the eligibility of individuals for employment to preclude the unlawful hiring, or recruiting or referring for a fee, of aliens who are not authorized to work in the United States.
The irony of this paragraph is overwhelming. I'm writing this during the midst of a national debate over outsourcing jobs like mine to India. While I think that cheap digital communications means that outsourcing can not be stopped, and there are benefits to outsourcing, note that this paragraph could be translated as "Employers, save yourselves a lot of hassle and do as much work as you can overseas. It'll save the USCIS a lot of work too."
Note that the USCIS isn't saying it wants my Social Security Number, just that they want me to give it to my employer. Of course, my employer already has my Social Security Number for income and Social Security tax purposes, but that isn't the issue here....
This information will be used by employers as a record of their basis for determining eligibility of an employee to work in the United States. The form will be kept by the employer and made available for inspection by officials of the U.S. Immigration and Naturalization Service, the Department of Labor and the Office of Special Counsel for Immigration Related Unfair Employment Practices.
This is where they get into trouble. "made available for inspection" means that the USCIS may ask for my Social Security Number in the future. Do they need to report their authority to have it now? And in the future, is my employer going to refuse to turn over their stack of I-9's to the USCIS until they get convincing authority? (If you knew my employer, that would be a rhetorical question.) Certainly in the interest of efficiency, they should do it now. As should the Department of Labor, which is not yet part of Homeland Security, and that Special Counsel who turns out to be part of the Department of Justice..
Submission of the information required in this form is voluntary. However, an individual may not begin employment unless this form is completed, since employers are subject to civil or criminal penalties if they do not comply with the Immigration Reform and Control Act of 1986.
Oh, how thoughtful of them! If I don't want my Social Security Number on Form I-9, all I have to do is not work! If you were to ask my wife, you'll find that is not an option. As a matter of fact, recent Welfare laws that require the able-bodied to work and Child Support laws that require I support my daughter essentially require me to work. This paragraph insults my intelligence, my work ethic, American Society and manufacturers of apple pies. Why do they bother calling this voluntary? As far as the Privacy Act is concerned, either voluntary or mandatory is adequate to meet the requirements to get my Social Security Number.
Note that the above doesn't address the last phrase in the Privacy Act excerpt, "what uses will be made of it. They did say "used by employers" and the USCIS might argue that they won't use it at all. If that's the case, there's no reason to include the box, not even if I used my Social Security card to establish eligibility.
All in all, I don't think the USCIS has met the conditions they must meet for me for me to offer them my Social Security Number. More bluntly, I conclude the form violates Federal Law.
Can I fire an employee who fails to produce the required document(s) within three (3) business days?The FAQ says nothing about Social Security Numbers.
Yes. You can terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen or destroyed documents), within three (3) business days of the date employment begins. However, you must apply these practices uniformly to all employees. If an employee has presented a receipt for a replacement document(s), he or she must produce the actual document(s) within 90 days of the date employment begins.
The only change between 1991 and 2007 to the I-9 form appears to be the rebranding to cover the INS to USCIS name change. Since the USCIS took over, the acceptable ID documents have changed, but the form hasn't. Less significantly, I think, is that the OMB document control number has expired. http://www.uscis.gov/i-9 used to say and another page still says:
- Special Instructions :
Notice regarding expiration of control number on Form I-9, Employment Eligibility Verification: The Office of Management and Budget (OMB) control number on the current Form I-9 expired March 31, 2007. USCIS is working on issuing a Form I-9 with an updated control number. This expiration does not affect employers' requirement to comply with employment eligibility verification responsibilities, and employers should continue to use this current version of the Form I-9 until an updated form is posted.
This version of Form I-9, Employment Eligibility Verification, is a fillable form. You should have the latest version of the free Adobe Reader to use the form.
Please note the following changes to the Form I-9 process:
- Form I-766 (Employment Authorization Document), although not listed on the 5/31/05 version of the Form I-9, is an acceptable List A document #10.
- Form I-151 is no longer an acceptable List A document #5. However, Form I-551 remains an acceptable List A document #5.
- The following documents have been removed from the list of acceptable identity and work authorization documents: Certificate of U.S. Citizenship (List A #2), Certificate of Naturalization (List A #3), Unexpired Reentry Permit (List A #8) and Unexpired Refugee Travel Document (List A #9).
Andy Strojny at http://www.i-9help.com/seems quite excited about the expired OMB number, but the rest of his site has good information about avoiding discrimination in hiring foreign workers. His 35 year career as a civil rights lawyer within the US government certainly makes him qualified.
5 U.S.C. § 552a
Not many copies are nicely formatted, this is a good one. The Social
Security section is almost at the bottom, I believe added as an
amendment or conference committee change.
Electronic
Privacy Information Center
Good history and commentary.
www.cavebear.com
This is an interesting site in general, run by Karl Auerbach who has a
long involvement in Internet operation. The home page offers The First Law of
the Internet: "Every person shall be free to use the Internet in any
way that is privately beneficial without being publicly detrimental."
Is that a restatement of the Wiccan Rede "An it harm none, do what
ye will?"
Privacy is one of his many interests, and his History of the Privacy Act of 1974 has some useful details.
DOJ:
Overview of the Privacy Act of 1974, May 2004
This Department of Justice page links to various sections of the Privacy Act,
including Social Security Number
Usage.
FindLaw
This site caters to the legal profession, and has several interesting links.
Some of the most relevant seem to come from 1998 and are a bit dated.
A couple worth reading are:
Contact Ric Werme or return to his home page.
Written 2004 March 27, last updated 2007 November 19.