Cite as "AILA InfoNet Doc. No. 03061743 (posted Jun. 17, 2003)"
American Immigration Lawyers Association
918 F Street,
N.W. Washington, D.C. 20004 (202) 216-2400
May 27, 2003
Via email: regulations@ssa.gov
Hon. Jo Anne B. Barnhart
Commissioner
Social Security
Administration
c/o Office of Regulations
100 Altmeyer Building
6401
Security Boulevard
Baltimore, MD 21235-6401
Re: Comments to Proposed Rule “Evidence Requirements for Assignment of
Social Security Numbers (SSNs); Assignment of SSNs for Nonwork Purposes,” Reg.
No. 22; RIN 0960-AF05 (68 Fed. Reg. 14563 (Mar. 26, 2003))
Dear Commissioner Barnhart:
The American Immigration Lawyers Association (AILA) is pleased to submit the
following comments on proposed regulations published in the Federal Register on
March 26, 2003, that would govern “valid nonwork purposes” for assigning Social
Security Numbers (SSNs). AILA is a bar association of more than 7,800
attorneys and law professors practicing and teaching in the field of immigration
and nationality law. Our mission includes the advancement of the law
pertaining to immigration and naturalization and the facilitation of justice in
the field. AILA’s members regularly represent and advise foreign nationals
in their applications for SSNs and other benefits implicated by the SSN, and we
are uniquely qualified to comment on the proposed rule.
This comment is confined to the Social Security Administration’s (SSA’s)
proposed change in the definition of “valid nonwork purpose.” AILA
believes that the proposed reduction in the age of applicants subject to
in-person interview and elimination of the waiver of evidence of identity for
children under age seven will curtail fraud in the enumeration process, and we
applaud these measures. However, AILA strongly objects to the proposed
restriction on enumeration for purposes of obtaining a driver’s license.
Summary of AILA’s Position
In “front-desk” application practices at motor vehicle offices around the
country, an SSN has become increasingly necessary to obtain a driver’s
license. Additionally, state legislatures are increasingly requiring the
SSN in driver’s licensing. Accordingly, under the proposed change,
hundreds of thousands of foreign nationals who are lawfully present in the
United States would be unable to obtain a driver’s license simply because they
lack work authorization or some other “valid nonwork” reason for
enumeration. This presents a severe hardship and also will contribute to
an increase in an already high rate of unlicensed drivers and uninsured
motorists, which jeopardizes the public safety. These onerous outcomes are
not justified by the stated purpose of the regulation—to reduce the misuse of
nonwork SSNs for unauthorized employment.
Moreover, the enumeration of foreign nationals actually creates additional
databases of persons in the country and, therefore, enriches the scope of
domestic intelligence. Thus, the proposal actually detracts from homeland
security. Finally, the proposed change is patently inconsistent with the
policy embodied in Section 205 of the Social Security Act, which expressly
invites the use of the SSN in state driver’s licensing administration. For
these reasons, the proposed rule will not advance its stated purpose and should
be reconsidered.
The Proposed Rule is Inconsistent with the Policy of Section 205 of
the Social Security Act
The proposed rule is inconsistent with the spirit and policy of Section
205(c)(2)(C)(i) of the Social Security Act, which explicitly allows states to
use the SSN in the administration of driver’s licensing programs. We
recognize that this section does not require enumeration for purposes of
driver’s licensing administration. However, it clearly tenders the SSN as
a key component in state licensing schemes and contemplates its role in the
application process. We, as a society, have come to depend on this, and
the SSN has become entrenched in the administration of state driver’s licensing
schemes. By proceeding with the proposed change, SSA would be turning its
back on hundreds of thousands of foreign nationals who have been welcomed into
the United States under immigration law and who, for all practical purposes,
need the SSN to navigate an already tortuous driver’s licensing application
process. Thus, the proposed change is inconsistent with the policy that
Congress has clearly expressed in the Social Security Act.
The Proposed Rule Imposes A Severe Burden on Foreign Nationals Who,
For All Practical Purposes, Need an SSN to Obtain a Driver’s
License
Whether intentional or desirable, the SSN has become inextricably intertwined
in state driver’s licensing policies and procedures, and the availability of an
SSN directly impacts on the ability of millions of foreign nationals to obtain a
driver’s license. According to the National Immigration Law Center, as of
February 2003, only six states do not require an SSN for driver’s license
eligibility1. Although a number of the states
requiring an SSN provide some exemptions (e.g., not required if applicant is
ineligible to get SSN), four states require the SSN without exception and five
more recognize only limited exceptions (e.g., SSN is only required of new
applicants). Moreover, state driver’s licensing statutes are in constant
flux as to whether an SSN should be required as legislatures struggle to enact
national security enhancement measures.
Regardless of whether a state statute actually requires the SSN, many states
either require the SSN by regulation or in the clerical “front-desking”
application process, which is administered by motor vehicle personnel who often
do not appreciate minimum legal requirements. Therefore, by precluding the
assignment of an SSN for purposes of obtaining a driver’s license, the proposed
rule would effectively deny a license to many individuals who lack work
authorization (or some other “valid nonwork reason”), even if they are
lawfully present.
For example, the proposed rule would remove the SSN and, hence, the driver’s
license from the reach of hundreds of thousands of lawful nonimmigrants,
including the dependents of H-1B specialty occupation workers, the dependents of
Canadian professionals, F-1 students, and hosts of others who are legally
present in the United States but who lack work authorization. This
presents an extreme burden for these individuals who are prevented from driving
to meet everyday needs and is at odds with an immigration policy incentive that
allows familial dependents to accompany a principal nonimmigrant. These
persons already must navigate an extremely difficult and unwieldy driver’s
license application process that is not equipped to recognize the wide and
complex variations on documentation of lawful status. For instance, in
many states, such as New York and North Carolina, the dependents of TN Canadians
(who enter under NAFTA) and other Canadian nonimmigrants are denied licenses
because they do not possess visas, which are not required of Canadians under US
immigration law. Thus, to the extent that it impacts on the driver’s
license application process, the proposed rule would only exacerbate an already
difficult situation for many foreign nationals who are lawfully present in the
United States.
AILA recognizes that only a minority of states unequivocally require the
SSN. However, it is our clients’ firsthand experience that the SSN is, in
practice, a prerequisite to the driver’s license, and too many of our clients
have been denied the license simply because they are unable to present an
SSN. And, while we applaud SSA’s efforts to work with state motor vehicle
administrations and the American Association of Motor Vehicle Administrators to
encourage the use of “SSN alternatives” in driver’s licensing schemes, this
leaves our clients at the mercy of piecemeal, state-by-state responses to a very
real day-to-day problem in obtaining a driver’s license.
The Proposed Rule Undermines the Public Safety By Disqualifying Many
Foreign Nationals From Obtaining Driver’s Licenses
Insofar as the SSN is required by a state driver’s license law or practice
and insofar as work authorization is required to obtain an SSN, the proposed
rule actually superimposes a requirement that the applicant for a driver’s
license must have work authorization. An applicant’s work authorization or
lack thereof has absolutely nothing to do with the public safety interests that
driver’s licensing seeks to protect. In fact, the proposed rule actually
will undermine public safety by increasing the numbers of unlicensed drivers who
must drive out of necessity, particularly in growing suburban centers.
While it may be improper, it is inevitable that many of the thousands of foreign
nationals who are precluded from obtaining a license will drive because they
must do so. Thus, the proposed rule will jeopardize public safety by
removing these drivers from the reach of motor vehicle examiners who are charged
with certifying minimum levels of driver competence. Further, drivers who
lack licenses generally will not have automobile insurance and may be more
likely to flee the scene of an accident.
The public safety ramifications of the proposed rule are illustrated by a
recent research report of the American Automobile Association Foundation for
Traffic Safety. The report determined that an average of 13.5 % of all
drivers are unlicensed (23.1% in New Mexico, and 6.1% in Maine) and that
unlicensed drivers are five times more likely to be in fatal crashes than
drivers with valid licenses2. Therefore, by
contributing to the numbers of unlicensed drivers and uninsured motorists, the
proposed rule would jeopardize public safety.
The Proposed Rule Would Not Advance Its Stated Purpose of Reducing
Unauthorized Employment
The preamble to the proposed rule claims that some individuals who have been
assigned SSNs for nonwork purposes, such as driver’s licenses, have misused the
SSN to work illegally. This discussion claims that the proposal will
promote integrity in the SSN process and reduce the opportunity for fraud
through the misuse of nonwork SSNs for employment. However,
eliminating enumeration for driver’s license purposes is an inefficient way to
enhance integrity in the SSN application process and will not reduce
unauthorized employment. Indeed, the proposal bears no rational
relationship to these goals.
We note that the means for controlling the use of non-work SSNs to engage in
unauthorized employment is already in place. Under SSA’s current policy
and practice of “total verification,” only individuals who can prove that they
have lawful immigration status and work authorization can receive an
unrestricted SSN. Moreover, any work that is reported on a non-work SSN is
reported to the Department of Homeland Security (DHS, formerly INS). DHS
regulations provide that an alien who engages in unauthorized employment is
removable from the United States. This system provides a framework for enforcing
the ban on employment for individuals with restricted SSNs. The proposed
rule would be redundant in this regard and would only serve to cause hardship to
individuals who are in the United States legally.
The background to the proposed rule itself notes that a foreign national who
is not authorized to work can obtain a Taxpayer Identification Number (TIN) from
the Internal Revenue Service. An employee willing to present a nonwork SSN
for employment could as easily present a TIN for this purpose. Thus, SSA’s
refusal to provide non-work SSNs for driver's licensing will not curtail the
rate of unauthorized employment.
The Proposed Rule Will Disserve Homeland Security By Detracting from
the Available Databases of Information on Foreign Nationals in the United
States
Recognizing the driver’s license as a valid nonwork reason for enumeration
enriches domestic intelligence and promotes national security. A policy of
assigning an SSN for driver’s licensing increases the number of foreign
nationals who will qualify for an SSN and the license. This will enhance
both SSA and statewide databases available to law enforcement by recording the
identities and addresses of foreign nationals present in the United States.
Over the years, the SSN has become universally accepted and expected as a
necessary incident of everyday life, from applying for a driver's license to
opening a bank account to securing a mortgage. We recognize that the SSA
may wish to restrict the availability of the SSN in furtherance of a generalized
desire to contribute to homeland security. However, any restriction that
presents a grave and serious hardship without concretely enhancing the national
security or otherwise advancing its stated purpose is improper. AILA
submits that the proposed elimination of a long-standing practice of assigning
an SSN for driver’s licensing purposes is plainly unsound and should not be
adopted.
Conclusion
AILA appreciates SSA’s consideration of its views on this very important
matter and is available to provide any additional information.
Sincerely,
The American Immigration Lawyers Association
1 To view the National Immigration Law
Center’s “Overview of States’ Driver’s License Requirements,” go to: http://www.nilc.org/immspbs/DLs/2003_Overview_State_DL_Reqs_4-30-03.PDF
2 To view the report, Unlicensed to Kill; The
Sequel, see: http://www.aaafoundation.org/pdf/UnlicensedToKill2.pdf
