AILA Comments on Proposed Rule Governing SSNs for Valid Nonwork Purposes

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