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Evidence Requirements and assignment of SSN's to Foreign Academic Students in F-1 Status.

Publication Date: September 2004
FRPart:

Page Numbers: 55065-55076

Evidence Requirements and assignment of SSN's to Foreign Academic Students in F-1 Status.

Posted on 09-13-2004

Federal Register: September 13, 2004
Volume 69, Number 176
[Rules and Regulations]

[Page 55065-55076]

[PDF version of document]


SOCIAL SECURITY ADMINISTRATION

20 CFR Part 422

[Regulations No. 22]
RIN 0960-AF87

Evidence Requirements for Assignment of Social Security Numbers
(SSNs); Assignment of SSNs to Foreign Academic Students in F-1 Status

AGENCY: Social Security Administration (SSA).

ACTION: Final rules.


SUMMARY: We are revising our rules for assigning SSNs to foreign
academic students in Department of Homeland Security (DHS, which has
subsumed most of the various functions of the former Immigration and
Naturalization Service or INS) classification status F-1 (referred to
throughout this preamble as F-1 students). Specifically, we are
requiring additional evidence for F-1 students who are applying for
SSNs. Like all other applicants, an F-1 student must provide SSA with
evidence of age, identity, immigration status, and work authorization.
In addition, unless the F-1 student has an employment authorization
document (EAD) from DHS or is authorized by the F-1 student's school
for curricular practical training (CPT), the F-1 student must provide
evidence that he or she has been authorized by the school to work and
has secured employment or a promise of employment before we will assign
an SSN. These rules will further enhance the integrity of SSA's
enumeration processes for assigning SSNs by reducing the proliferation
of SSNs used for purposes that are not related to work and thereby
decreasing the potential for SSN fraud and misuse.

DATES: These regulations are effective October 13, 2004.
Electronic Version: The electronic file of this document is
available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html. It is also available on the Internet site for SSA (i.e., Social Security Online) at http://policy.ssa.gov/pnpublic.nsf/LawsRegs
.


FOR FURTHER INFORMATION CONTACT: Robert J. Augustine, Social Insurance
Specialist, Office of Regulations, 100 Altmeyer Building, Social
Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-
6401, (410) 965-0020, 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

[[Page 55066]]

site, Social Security Online, at http://www.socialsecurity.gov.


SUPPLEMENTARY INFORMATION:

Background

The Social Security Administration has been working to strengthen
the process for assigning SSNs, our "enumeration" process. Concerns
about national security, along with the growing problem of identity
theft, have prompted us to identify additional areas where we can
strengthen the integrity of the enumeration process. We have undertaken
many initiatives but mention just a few here as background. As part of
the SSN application process, we now verify the birth records submitted
as evidence for U.S.-born citizens age one or older, and verify the
immigration status of non-citizens with DHS. We have heightened the
importance of our screening process for all evidentiary documents and
recently promulgated new regulations lowering the age for mandatory in-
person interviews.
As part of our overall review of our enumeration processes for
citizens and non-citizens alike, we considered our policy of assigning
SSNs to F-1 students who do not have specific work authorization from
DHS or from their schools. It might be helpful to look at how the
Immigration and Nationality Act (INA) defines the F-1 nonimmigrant
classification to better understand the context in which we made our
regulations change.
The INA, in section 101(a)(15)(F)(i), 8 U.S.C. 1101(a)(15)(F)(i),
describes an F-1 nonimmigrant as "an alien having a residence in a
foreign country which he has no intention of abandoning, who is a bona
fide student qualified to pursue a full course of study and who seeks
to enter the United States temporarily and solely for the purpose of
pursuing such a course of study." (Italics added.) This definition
provides the purpose of the F-1 student's stay in the U.S.--to study.
Working in the U.S. is ancillary. In this respect, the F-1
classification is different from certain other nonimmigrant
classifications that are based upon the type of work the nonimmigrant
will be performing while in the U.S.
DHS regulations do provide, however, that F-1 students, while
maintaining valid nonimmigrant student status, may work in the U.S.
under certain circumstances. Under 8 CFR 214.2(f)(9)-(10), F-1 students
may be authorized to work off-campus in optional practical training
(OPT) and in an internship with a recognized international
organization, or in cases of severe economic hardship. For these off-
campus situations, they must apply to DHS for employment authorization.
DHS then determines whether the applicant is eligible for employment
authorization, and, if so, issues the applicant an EAD.
In the case of OPT, the employment must be directly related to the
F-1 student's major area of study. If offered employment in an
internship with a recognized international organization, the student
must have a written certification from the international organization
that the proposed employment is within the scope of the organization's
sponsorship. In cases of extreme economic hardship, the student must
present documentation as to why it is critical to be allowed to work
off-campus (i.e., loss of financial aid or on-campus employment without
fault on the part of the student, substantial fluctuations in the value
of currency or exchange rate, inordinate increases in tuition and/or
living expenses, unexpected changes in the financial condition of the
student's source of support, medical bills, or other substantial and
unexpected expenses).
An F-1 student may also be eligible to participate in a CPT program
that is an integral part of an established curriculum at the school
where the student is enrolled. The work must be approved by the
Designated School Official (DSO), who signs the student's Student and
Exchange Visitor Information System (SEVIS) Form I-20, Certificate of
Eligibility for Nonimmigrant Student Status, with the particulars of
the employment, including whether the training is full time or part
time, the name and location of the employer, and the start and end
dates of the employment. For CPT, the student is neither required to
submit a Form I-765 to DHS, nor required to present an EAD. See 8 CFR
214.2(f)(10)(i).
Under 8 CFR 214.2(f)(9)(i) and 274a.12(b)(6)(i), an F-1 student may
also work "on campus" for a "specific employer incident to status"
on the school's premises or at an off-campus location that is
educationally affiliated with the school. F-1 students may perform such
work without submitting a Form I-765 to DHS or having a DSO report on-
campus employment or endorse the student's SEVIS Form I-20. However, 8
CFR 274a.12(b)(6)(i) does state, "Part-time on-campus employment is
authorized by the school." DHS regulations are silent on how the
school must authorize that on-campus employment because there is no DHS
specific requirement as to how a school provides such authorization to
F-1 students. It is clear that such work must not displace a U.S.
resident and must be an integral part of the student's educational
program. In addition, there are limitations on when the work may be
performed (e.g., not more than 30 days prior to the actual start of
classes) and the maximum number of work hours.
When there is no EAD or school endorsement to document employment,
SSA's experience indicates that many F-1 students are assigned SSNs
when the students do not have jobs, are not intending to work, and, in
some cases, where the school does not have on-campus employment
available. Currently, for on-campus employment, where there is no EAD
card or school annotation regarding employment on the SEVIS Form I-20,
SSA accepts a letter from the DSO affirming that the student is
enrolled in a full course of study and is therefore authorized to work
on campus. However, our field experience shows that these letters are
not always reliable. An October 2003 General Accounting Office (GAO)
Report to the Chairman, Subcommittee on Social Security, Committee on
Ways and Means, House of Representatives, entitled "Social Security
Administration: Actions Taken to Strengthen Procedures for Issuing
Social Security Numbers to Noncitizens but Some Weaknesses Remain"
(GAO-04-12), cited an SSA Office of Inspector General (OIG)
investigation that "uncovered a ring of 32 foreign students in four
states who used forged work authorization letters to obtain SSNs. * * *
However, an unknown number of other students associated with this ring
had already obtained illegal SSNs with forged work authorization
letters." Because of these types of investigations and numerous
similar anecdotal field reports about significant anomalies between
authorized work and actual work, we are revising our regulations for
assigning SSNs to F-1 students. To ensure the authenticity of the
student's work authorization from the school and to address student
allegations about employment, we are requiring the F-1 student to
provide evidence from the DSO of on-campus employment authorization and
verification of employment or a promise of employment from the actual
on-campus employer.
Assigning SSNs based on work that is authorized to be performed on
campus, which we do not verify and which our experience and audits have
shown to be often unsubstantiated--in effect assigning SSNs for non-
work--runs counter to efforts SSA has initiated. These efforts also
include those in response to Congressional inquiries and

[[Page 55067]]

OIG and GAO audits to strengthen enumeration integrity and decrease
opportunities for potential SSN fraud and misuse. It also runs counter
to SSA's recently promulgated regulation, "Evidence Requirements for
Assignment of Social Security Numbers (SSNs): Assignment of SSNs for
Nonwork Purposes," published in the Federal Register on September 25,
2003 (68 FR 55304), and effective October 27, 2003. This regulation,
available online at http://www.socialsecurity.gov/regulations/articles/rin0960_af05f.htm
limits the number of valid non-work reasons for assigning an SSN to a non-citizen.
Because of these considerations, SSA is changing its regulations
for SSN assignment to F-1 students for on-campus work. While we
recognize that this change in our regulations will cause some
inconvenience for F-1 students and schools, we believe that SSA's
mission and the recommendations made by OIG, GAO and Congress to
strengthen the enumeration process require that we make these
revisions. We will provide assistance to schools and employers in
implementing these regulatory changes as outlined below and will
continue to work with educational associations and DHS as the process
moves forward.
The Commissioner of the Social Security Administration has been
given broad powers under law to carry out the provisions of the Social
Security Act (the Act) and to establish procedures deemed necessary for
that purpose. Section 205(a) of the Act states: "The Commissioner of
Social Security shall have full power and authority to make rules and
regulations and to establish procedures, not inconsistent with the
provisions of this title, which are necessary or appropriate to carry
out such provisions, and shall adopt reasonable and proper rules and
regulations to regulate and provide for the nature and extent of the
proofs and evidence and the method of taking and furnishing the same in
order to establish the right to benefits hereunder." [Italics added]
Under section 205(c)(2)(A) of the Act, the Commissioner of Social
Security is required to "establish and maintain records of the amounts
of wages paid to * * * each individual and of the periods in which such
wages were paid * * *." In addition, under section 205(c)(2)(B)(i)(I)
of the Act, the Commissioner is required to assign Social Security
numbers to the maximum extent practicable "to aliens at the time of
their lawful admission to the United States either for permanent
residence or under other authority of law permitting them to engage in
employment in the United States and to other aliens at such time as
their status is so changed as to make it lawful for them to engage in
such employment." [Italics added] We consider the F-1 student to be in
a status permitting on-campus work, which makes the student eligible
for an SSN and a restricted Social Security card, when we have received
evidence from the DSO that the school has authorized such work and the
student has made arrangements to work for a specific employer.
Section 205(c)(2)(B)(ii) goes on to add that "The Commissioner of
Social Security shall require of applicants for social security account
numbers such evidence as may be necessary to establish the age,
citizenship, or alien status, and true identity of such applicants, and
to determine which (if any) social security account number has
previously been assigned to such individual."
SSA's regulations at 20 CFR 422.107(a) implement the Act with
respect to the evidence required to support an application for an SSN:
"An applicant for an original social security number card must submit
documentary evidence which the Commissioner of Social Security regards
as convincing evidence of age, U.S. citizenship or alien status, and
true identity." [Italics added] Additionally, they provide, "A social
security number will not be assigned, or an original, duplicate, or
corrected card issued, unless all the evidence requirements are met."

Current SSA Rules

Our regulations at 20 CFR 422.105 currently state that a
nonimmigrant alien whose immigration Form I-94, Arrival/Departure
Record, does not reflect a classification permitting work must submit a
current document issued by U.S. immigration authority that verifies
authorization to work has been granted.
Our regulations at 20 CFR 422.107(e) currently state that "When a
person who is not a U.S. citizen applies for an original social
security number or a duplicate or corrected social security number
card, he or she is required to submit, as evidence of alien status, a
current document issued by the [INS] in accordance with [its]
regulations. The document must show that the applicant has been
lawfully admitted to the United States, either for permanent residence
or under authority of law permitting him or her to work in the United
States, or that the applicant's alien status has changed so that it is
lawful for him or her to work." If the applicant submits a valid
unexpired immigration document(s) that shows current authorization to
work, we will assign an SSN and issue a card that is valid for work.
Current SSA procedures require an F-1 student who needs an SSN for
work to present evidence of age, identity, F-1 immigration status, and
work authorization. This work authorization can either be from DHS in
the form of an EAD document or from the F-1 student's school for on-
campus employment or CPT. In the past, when an F-1 student applied for
an SSN, we believed that the student had a job or imminent plans to
secure a job. However, our recent experience has shown that some F-1
students, who do not have an EAD and are not authorized by their
schools for on-campus curricular practical training, but who do have a
letter from the DSO, apply for SSNs even when there is limited or no
general on-campus employment available. Some F-1 students have informed
us that they do not intend to work but need the SSNs to obtain goods or
services in the community.
Because of these factors, we are requiring additional evidence for
F-1 student SSN applicants. The purpose of the SSN is to keep track of
an individual's earnings in the U.S. over his or her lifetime and to
pay Social Security benefits. The assignment of SSNs for purposes other
than that for which the SSN is intended can lead to potential misuse
and/or fraud, which can impact society in the form of illegal
employment in the U.S., fraudulent entitlement to Federal and State
benefits and services, and other types of illegal activity such as bank
and credit card fraud and identity theft. In order to strengthen the
security of the enumeration process, we are requiring additional
evidence from F-1 students before we will assign SSNs to them because
they are allowed to work only in certain circumstances. We want to
confirm that the student needs the SSN for such authorized work. If F-1
students are not planning to work in the kinds of jobs allowed by their
F-1 status, then they would not have a legitimate need for the SSNs and
the SSNs would not be assigned.
A number of published government audits and reports support this
change. Three are cited here and are accessible online:
SSA (OIG) study, "Using Social Security Numbers To Commit
Fraud" (A-08-99-42002, May 1999) at http://www.ssa.gov/oig/ADOBEPDF/A-08-99-42002.pdf;
GAO Report to the Chairman, Subcommittee on Social
Security, Committee on Ways and Means, House

[[Page 55068]]

of Representatives, "Social Security Administration: Actions Taken to
Strengthen Procedures for Issuing Social Security Numbers to
Noncitizens but Some Weaknesses Remain" (GAO-04-12, October 2003) at
http://www.gao.gov; and SSA's OIG report, "Management Advisory Report: The Social
Security Administration's Procedures for Enumerating Foreign Students"
(A-05-03-23056, December 17, 2003) at http://www.ssa.gov/oig/office_of_audit/audit2004.htm.


Explanation of Additional Evidentiary Requirements

Section 422.105 Presumption of Authority of Nonimmigrant Alien To
Accept Employment

We are revising Sec. 422.105 to state that, unless the F-1 student
has an employment authorization document issued by DHS or a SEVIS Form
I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status,
completed and signed by the school's DSO authorizing CPT on the
employment page (page 3), the F-1 student applicant must provide
additional documentation that confirms both that he or she has
authorization from the school to engage in employment and has secured
authorized employment. (In 2003, INS's benefit functions became part of
the DHS.) This wording differs somewhat from that in the Notice of
Proposed Rulemaking to clarify that this rule change only applies to F-
1 students for on-campus work (these students have neither EADs nor
authorization from their schools on Form I-20 for CPT). In discussions
over the last year with DHS officials, they supported our plans to
assign SSNs only to those F-1 students who have secured a job. The
revision includes a cross-reference to Sec. 422.107(e)(2), where the
specific evidence requirements are explained.

Section 422.107 Evidence Requirements

We are revising paragraph (e) of Sec. 422.107 of our regulations
by redesignating paragraph (e) as paragraph (e)(1) and adding a new
paragraph (e)(2) to specify that if an F-1 student does not have an
employment authorization document and is not authorized for CPT as
shown on the F-1 student's SEVIS Form I-20, Certificate of Eligibility
for Nonimmigrant (F-1) Student Status, the F-1 student must provide
documentation of both work authorization from the school and secured
employment before we will assign an SSN to the student. First, the F-1
student will need to provide documentation from the school that he or
she will be engaging in authorized employment. Under this change in our
policy, we will not assign an SSN to the F-1 student unless the student
provides a SEVIS Form I-20, and provides written confirmation from the
DSO of (1) the nature of the employment the F-1 student is or will be
engaged in and (2) the identification of the employer for whom the F-1
student is or will be working.
Second, we are also requiring that the F-1 student provide us with
documentation that he or she is engaged in or has secured employment;
e.g., a statement from the F-1 student's employer. For purposes of
these requirements, evidence of a formal job offer, a promise of a job,
or evidence that the student is in fact engaged in that job will be
considered "secured" employment.
By adding these additional evidentiary requirements, we believe
there will be fewer opportunities for abuse of the enumeration process
without having any adverse effects on F-1 students who need to work
while they are in the U.S. The additional documentation we would
require should be readily available.
In addition to the revisions discussed above, we are also making
technical non-substantive revisions to Sec. Sec. 422.103(b)(3) and
(c)(3), 422.104(c), 422.105, 422.107(c), (d)(4), (d)(6), (e)(1) and
(e)(2), and 422.110(b) that were not included in the NPRM. The
revisions reflect that the Immigration and Naturalization Service has
been reconstituted into the Department of Homeland Security.

Public Comments

On December 16, 2003, we published proposed rules in the Federal
Register at 68 FR 69978 and provided a 60-day period for interested
parties to comment. We received comments from 5 advocacy groups, 1
attorney representing international student interests, more than 70
colleges, universities and graduate schools, and 5 individuals. Because
some of the comments received were quite detailed, we have condensed,
summarized or paraphrased them in the discussion below. We have tried
to present all views adequately and carefully address all of the issues
raised by the commenters that are within the scope of the proposed
rules.

Purpose of This Regulation: Connection to the Prevention of Terrorism,
Fraud and Misuse of the Social Security Number (SSN)

Comment: A number of commenters suggested that SSA "withdraw"
this regulation, questioning the purpose behind the rule and how its
promulgation will prevent fraud, reduce misuse of the SSN, and/or deter
terrorism. One questioned how this rule, had it been in effect in 2001,
might have prevented the 9/11 terrorist attack and how it could prevent
terrorist attacks in the future. Questions were raised about SSA's
fraud prevention measures and some asked specifically how many
international students commit SSN fraud, how this rule will reduce
instances of SSN fraud and how international student fraud compares to
overall SSN fraud. Comments were made that our rule "purports to solve
a problem that does not exist" and criticized our using the May 1999,
SSA OIG report, "Using Social Security Numbers To Commit Fraud" (A-
08-99-42002), as part of the justification for this rule. This report
was said to be too old to use as justification for a current regulation
that would create "[s]erious policy changes with * * * far-reaching
negative impact." Some commenters said the OIG report showed only that
most of a small sample of international students who had SSNs did not
have any earnings for the year studied; it did not indicate that the
SSNs were used to work illegally in the U.S. Some mentioned that if F-1
students were to "misuse" their SSNs, it would be an issue for DHS,
not SSA, to resolve. And, some commented that the rule provides no
follow-up mechanism for SSA to determine whether the SSNs were actually
used for work purposes.
Response: As we pointed out in the Proposed Rule language, in the
past, when an F-1 student applied for an SSN, we believed that the
student had a job or imminent plans to secure a job. However, our
recent experience has shown that some F-1 students apply for SSNs even
when there is limited or no employment available. Some schools and
universities provide all their registered F-1 students with letters
authorizing on-campus employment and refer them to SSA offices to apply
for SSNs. Often, many of these students inform us that they do not
intend to work but need the SSNs to obtain goods or services in the
community.
We are revising our policy on the assignment of SSNs to F-1
students because our experience suggests that SSNs are assigned to some
F-1 students who are not working and do not intend

[[Page 55069]]

to work. There are rare instances where an F-1 student might qualify
for a non-work SSN. The only valid nonwork reasons for an SSN are: (1)
A Federal statute or regulation requires an SSN to get the particular
benefit or service to which a nonimmigrant has otherwise established
entitlement; and (2) a State or local law requires a nonimmigrant who
is legally in the U.S. to provide his/her SSN to get public assistance
benefits to which he or she has otherwise established entitlement and
for which all other requirements have been met. In all other cases, an
F-1 student is not eligible for an SSN unless he or she will be working
for a specific employer or in a specific type of employment, such as
CPT, OPT or for a recognized international organization, or in cases of
extreme economic hardship, as permitted by the F-1 classification.
Assigning SSNs that are not needed for authorized work for a specific
employer or in specific employment would put into circulation SSNs that
may be used for fraudulent purposes or illegally for work not permitted
while in the U.S. (i.e., in work not permitted by their classification
under immigration regulations at 8 CFR 274a.12).
With respect to how this rule relates to actual or potential
terrorists, we note that SSA must do its part to strengthen the
integrity of the SSN, lessen the fraudulent use of the SSN, and guard
against providing SSNs inappropriately that could enable someone to
integrate into American society who might intend to engage in criminal
behavior or harm our country. The issuance of Federal documents to
individuals who intend to do us harm enables those individuals to move
more easily in our society. Therefore, in our discussions over the last
year with DHS, it supported our plans to assign SSNs only to those F-1
students who have secured jobs.
Numerous studies support our concerns in this area and the need to
revise policy. In addition to the reports cited in the Preamble, we
reference the following OIG reports:
"Congressional Response Report: SSN Misuse: A Challenge
for the Social Security Administration," A-08-02-22030, October 3,
2001, http://www.ssa.gov/oig/office_of_audit/audit2002.htm;

"Inspector General Statement on the Social Security
Administration's Major Management Challenges," A-02-02-12054, December
7, 2001, http://www.ssa.gov/oig/office_of_audit/audit2002.htm; and

"Management Advisory Report: Social Security Number
Integrity: An Important Link in Homeland Security," A-08-02-22077, May
9, 2002, http://www.ssa.gov/oig/office_of_audit/audit2002.htm.

Additional audit reports may be found on SSA's Web site of the
Inspector General at http://www.ssa.gov/oig/office_of_audit/index.htm.

The GAO also issued a report to the Chairman, Subcommittee on
Social Security, Committee on Ways and Means, House of Representatives,
in October 2003 entitled "Social Security Administration: Actions
Taken to Strengthen Procedures for Issuing Social Security Numbers to
Noncitizens but Some Weaknesses Remain" (GAO-04-12 accessible at
http://www.gao.gov). In this report, based on its work from July 2002

through July 2003, GAO discussed SSA's verification of documents for
foreign students seeking SSNs. GAO mentioned that SSA had stepped up
its verification efforts for foreign students by requiring that they
prove enrollment in a full course of study at a DHS-approved school
before assigning SSNs to them. However, on page 7, it also advised the
Committee that "SSA still does not require its field staff to verify
this information or letters from the school stating the student is
authorized to work--with the school," and "SSA also does not require
that students actually have a job to qualify for an SSN, only that they
have been authorized by their school to work on campus." On page 10 of
the report, GAO supports its contention that "verification of foreign
students * * * remains problematic" by citing a "recent"
investigation by SSA's OIG, which we alluded to earlier in the
preamble, regarding the ring of 32 foreign students in four states who
presented to SSA forged work authorization letters along with their SSN
applications. There were other students associated with this ring who
had already obtained SSNs using the bogus letters.
In addition, the report cited a foreign student Web site that
"advises" foreign students to "shop around" for an SSN by visiting
more than one SSA office. The Web site also states, "If you are not
authorized to work, ask your Foreign Student Advisor for help.
Sometimes they can give you a letter to the SSA stating that you need a
SSN for on-campus employment. Sometimes SSA clerks dont really read
these letters, they just look at them." The GAO report included
reports of schools, operating out of storefronts, that issued work
authorization letters for students, claiming the students were working
on campus. Another SSA office recounted to GAO reviewers experiences
with schools selling work authorization letters to students who wished
to get SSNs. These findings were pointed out in the report to the
Committee as vulnerabilities for the integrity of SSA's enumeration
system and as contributing to the proliferation of SSNs with the
potential for misuse.
Most recently, SSA's OIG issued its final report on the enumeration
of foreign students: "Management Advisory Report: The Social Security
Administration's Procedures for Enumerating Foreign Students," A-05-
03-23056, December 17, 2003, http://www.ssa.gov/oig/office_of_audit/audit2004.htm.
The report pointed out problems that OIG sees in the enumeration of foreign students and stated that, while it recognized
that increased security measures will impact on the time necessary to
process SSN applications, it recommended that SSA employ more effective
front-end controls over the enumeration of foreign students.
The OIG auditors corroborated our field experiences. In its
examination of 15 educational institutions that enrolled 61,760 foreign
students during the period November 2002 through October 2003 (during
which time SSA was already requiring schools to provide evidence of
school attendance and work authorization), OIG found that only 4 of the
15 (27 percent) stated that employment or an offer of employment was
required to receive a work authorization letter from the school. The
remaining 11 schools provided employment letters to all students based
on their eligibility for employment. The OIG auditors cited a school
that gave out the SS-5, Application for a Social Security Card, to
every freshman during orientation as part of the normal registration
process at that school. Also, one of the schools OIG examined, which
has one of the highest percentages of foreign students among U.S.
institutions, had just recently changed its policies to require that
the student have a job offer prior to issuing a work authorization
letter to SSA.
OIG recognized that work authorization and related work status of
an F-1student are difficult to substantiate in the absence of any
annotation on the I-20 or an EAD, and went on to recommend that SSA
propose the regulatory requirement that evidence of actual employment
be required for foreign students to be assigned SSNs. This requirement
should help prevent the proliferation of SSNs used for non-work
purposes and reduce the potential for fraud by confirming that each F-1
SSN applicant is attending school and is in good academic standing,
that there is a legitimate job on campus for him or her,

[[Page 55070]]

and that each student has individualized, specific documentation to
that effect.
This effort, as well as SSA's new verification procedures utilizing
data from SEVIS to track foreign students and exchange visitors while
they are in the U.S., may not prevent fraud and misuse, but both our
enhanced enumeration processes and SEVIS work to make it less likely
that fraud and misuse will occur.
With regard to the comments indicating that misuse of the SSN is
solely a DHS issue, we point out here that SSA is responsible for
investigating unauthorized uses of SSNs under the Act. Following the
events of September 11, 2001, we increased management attention to
possible enumeration weaknesses. We have developed major new
initiatives that affect the assignment of SSNs to citizens and
noncitizens alike. The examination of how and to whom we assign SSNs,
which includes possible misuse of the SSN--unauthorized assignment or
fraudulent application--is an issue of the utmost importance to us. As
the Agency responsible for assigning SSNs, and maintaining the earnings
records and other personal information for millions of SSN holders, SSA
is responsible for investigating the misuse of SSNs.

Legality of Regulation

Comment: Several commenters questioned the legal basis for SSA's
regulation with respect to F-1 students and on-campus work, saying that
neither the Act nor SSA's regulations require actual employment as a
precursor to obtaining an SSN.
Response: As already discussed in the Background section of the
Preamble, we believe the Act supports a change in our regulations with
respect to the type of evidence we require that is both appropriate and
convincing to establish a work-related need for SSNs assigned to F-1
students. While F-1 students are allowed into the U.S. to study, DHS
regulations also provide specific types of work in which F-1 students
may engage. They are not allowed to work anywhere they wish in the
general economy. As part of the application process for an SSN, SSA
needs to know where an F-1 student will work in order to verify that
the SSN will be used for legitimate and authorized purposes as allowed
by the student's immigration classification.
For off-campus work, the F-1 student will have an EAD. If CPT is
involved, the F-1 student will have the I-20 completed and signed by
the DSO with specific employment information on the employment page
(page 3). For on-campus work, DHS regulations require authorization by
the school, although no specific endorsement by the school or DHS is
necessary. See 8 CFR 274a.12(b)(6)(i). We are revising our regulations
to state that we will need to see evidence of employment authorization,
as well as evidence that a specific job has been secured, in order to
establish a work-related need for the SSN.
The Act and regulations allow the Commissioner, as custodian of the
SSN, to make rules and regulations that are necessary and appropriate
to administer Social Security programs. Our rule is revising 20 CFR
422.105, "Presumption of authority of nonimmigrant alien to accept
employment," and 20 CFR 422.107, "Evidence Requirements," to more
clearly stipulate what is convincing evidence for F-1 students so as to
assign them SSNs.
The additional documentation we are requiring will provide more
definitive evidence than our current process of accepting DSO letters
that confirm only that the student is enrolled in a full course of
study and is work-authorized. SSA's OIG and others have found these
procedures to be deficient. The new procedures will link the request
for an SSN to an actual job that the student is allowed to hold,
consistent with the F-1 status, and will help prevent the proliferation
of SSNs for non-work purposes.

F-1 Work on Campus "Incident to Status"

Comment: Some commenters questioned SSA's understanding of DHS
regulations as they pertain to our asking for additional documentation
about the F-1 student's on-campus work, saying that such employment,
under immigration regulations, is "incident to their status" or that
it is a "benefit" or "entitlement" of their immigration status and,
therefore, needs no formal documentation. One commenter said our
proposed ruling "effectively negates" DHS regulations allowing F-1
students to work on campus.
Response: We have compared DHS regulations with our draft
regulations and disagree that our regulations will negate an F-1
student's on-campus work possibilities. DHS establishes work
eligibility for the various immigration categories. For F-1 on-campus
work, DHS has delegated the authority to authorize work to the DSOs.
See 8 CFR 274a.12(b)(6). DHS regulations at 8 CFR 214.2(f)(9) include a
restriction on the number of hours that can be worked while school is
in session and provide the specifics for what does and does not
constitute "on-campus employment." For example, this regulation
states that, "Employment with on-site commercial firms, such as a
construction company building a school building, which do not provide
direct student services is not deemed on-campus employment" and, "An
F-1 student may engage in any on-campus employment authorized under
this paragraph which will not displace United States residents."
Further, 8 CFR 274a.12(b) provides that an F-1 student is
authorized to work with a "specific employer incident to status"
(italics added), i.e., if that employment is on campus or for purposes
of CPT. 8 CFR 274a.12 (b)(6) adds another qualifier about such
employment: the student must be in "valid nonimmigrant status." Also,
CPT must be specifically authorized by the DSO before an F-1 student
may engage in CPT. The types of off-campus work an F-1 student may
perform are governed by other DHS regulations not directly germane to
this discussion.
Thus, an F-1 student's ability to work on campus is dependent on
meeting certain DHS criteria as stipulated in that Agency's
regulations.
When an F-1 student files an application for an SSN, and if the
student does not have an employment authorization document from DHS or
an I-20 with employment information filled in by the DSO (as well as
the signed approval of the DSO) on the employment page (page 3), it is
not obvious to an SSA employee that the F-1 student can work. We have
no way of knowing if the F-1 student is still in status, and therefore
eligible and authorized to work (i.e., is still a lawfully enrolled F-1
student at the school in a full course of study and/or otherwise
maintaining valid nonimmigrant F-1 student status as stipulated in DHS
regulations). For this reason, we require additional documentation to
verify or otherwise validate that the F-1 student is still meeting
those legal obligations. Thus, we are requiring evidence and
verification of a job or job offer in order to ensure that we are
assigning an SSN for a legitimate work-related purpose within the scope
of the F-1 student's immigration classification.
We do not believe that this additional documentation is
"effectively negating" DHS regulations. From our discussions with DHS
officials, we understand that they support our plans to assign SSNs to
those F-1 students who have secured jobs. We also know of schools and
universities in the U.S. that already advise their students not to
visit an SSA office until they have a job, job

[[Page 55071]]

prospects or even a written job offer or "contract" in hand.

DHS Does Not Require an F-1 Student To Have a Job Before Providing the
Student an EAD

Comment: One commenter said that DHS does not require an F-1
student to have a job before applying for an EAD to work off-campus and
questioned why SSA is requiring proof of a job before assigning an SSN.
Response: We have discussed this issue with DHS officials in light
of the regulations at 8 CFR 214.2(f)(9) that provide the DHS
requirements that must be met before F-1 students can work while in the
U.S. The DHS regulation cited does not require that an F-1 student
prove he or she has an off-campus job before DHS provides the student
an EAD. However, it does require that the DSO, as part of the student's
application for an EAD, provide adequate "documentation" to prove why
the student legitimately needs to work off-campus, and that the student
is meeting all other requirements for maintaining lawful nonimmigrant
status as an F-1 student at the school. This additional documentation
provides support for the off-campus work and helps DHS decide whether
to provide an EAD to the student. For SSA, the EAD provides a link to
actual work.
Also, for CPT, DHS regulations provide that the DSO must first
provide specific employment information on the employment page (page 3)
of the SEVIS Form I-20 before the student may begin such work. The DSO
updates "the student's record in SEVIS as being authorized for
curricular practical training that is directly related to the student's
major area of study." The DSO also indicates "whether the training is
full-time or part-time, the employer and location, and the employment
start and end date." Finally, the DSO prints out a copy of the
employment page indicating that curricular practical training has been
approved, signs and dates it, and returns the SEVIS Form I-20 to the
student, prior to the student beginning the CPT. Again, this
documentation provides SSA field employees a link to actual work.
The only type of work an F-1 student may engage in that does not
require some type of additional documentation under DHS regulations as
described above is on-campus work pursuant to 8 CFR 214.2(f)(9(i) and
274a.12(b)(6)(i). Each year, SSA field employees interview numerous F-1
SSN applicants who do not have EADs or work documented on their SEVIS
Form I-20s. These are the types of cases that SSA's OIG, in several
audits referred to earlier in this document, has found to be most
problematic. Because in these cases it is not clear to SSA employees
that the F-1 student needs an SSN for work (in the absence of an EAD or
specific employment information on the I-20), we are requiring
additional documentation from the F-1 student to confirm that he or she
needs an SSN in order to work for a specific employer in a type of work
allowed by their F-1 classification.

Requirement for DSO Work Information and Verification of That
Information With Employer for On-Campus Work

Comment: A number of commenters agreed with our position that it is
important to verify an F-1 applicant's claim with respect to employment
on campus. A few commenters suggested that one all-inclusive letter, in
which the DSO provides information about the type of work the student
is performing and verification of that work, suffice as proof of
employment.
Response: We appreciate these comments, but the intent of the rule
is to provide not only a statement from the school's DSO about the
student's enrollment in a full course of study and work information,
but also to confirm that information with the actual department or
school office employing the student. In those cases where the DSO might
also be the actual employer of the F-1 student, we would ask to have
that employment confirmed with the human resources department or some
other department that is responsible for payroll and wage reporting. If
a student has already started a job, a pay slip or stub from the
employer for work already performed would be acceptable proof of
employment.
The reasons for needing to corroborate the work information that
the DSO provides has already been cited above: SSA's experience with
"DSO letters" that were fabricated by students, work allegations
where there are very limited or no on-campus jobs, and the various OIG
and GAO reports that confirm these experiences and recommend we require
proof of employment from F-1 students for on-campus work. The
verification from the actual employer (or HR/payroll department) is
meant to support the DSO's statement about the student's work and
confirm the need for the student to be assigned an SSN.

Curricular and Optional Practical Training, and Off-Campus Employment

Comment: We received several comments that questioned how this
regulation would affect F-1 students who need to perform curricular or
optional practical training (CPT and OPT) as part of their program, or
who need to work in cases of severe economic hardship.
Response: This regulation only affects F-1 students who want to
work or are already engaged in general on-campus work. This regulation
is not meant to apply to any other type of work that an F-1 student may
be authorized to perform while in this country, including work for CPT
purposes. We agree, however, that the regulation language as drafted
did not make that clear with respect to CPT. We have thus changed the
language of the regulation in this final rule in 20 CFR 422.105,
"Presumption of Authority of Nonimmigrant Alien to Engage in
Employment," and 20 CFR 422.107, "Evidence Requirements," to make it
clear that this rule applies only to F-1 students who do not have an
EAD and are not authorized by the DSO for curricular practical training
(CPT) as shown on the student's SEVIS Form I-20, Certificate of
Eligibility for Nonimmigrant (F-1) Student Status. For CPT work, we
will not require a DSO letter or separate employment verification
because the DSO already provides work authorization and additional
specific employment information on the student's I-20 employment page
(page 3) as evidence of work. For OPT and other types of off-campus
employment, we use the employment authorization document (EAD) that the
student receives from DHS as proof of work authorization. These
students do not need to provide proof of having a job, as we are
requiring of F-1 students for general on-campus work, because they have
provided sufficient information to obtain authorization to work off-
campus so that we know they are seriously planning to work.

Exceptions to Regulation for Graduate Assistantships and Fellowships

Comment: Some commenters asked about the potential impact of this
regulation on individuals who are attending school, particularly
graduate school, and receiving a fellowship or assistantship in
exchange for teaching or other services.
Response: The regulation as written does not prohibit the F-1
student from presenting his or her acceptance letter, which outlines
the stipulations of the work portion of the fellowship or
assistantship, as proof of employment. In such cases, we may not
require any additional statement from the employer, but we will require
the letter from the DSO that certifies the student is

[[Page 55072]]

attending school and has authorization to engage in on-campus
employment.

Scholarships

Comment: Some have asked about the potential impact on individuals
who are attending school via academic or athletic scholarships, or some
other form of subsidy where the student receives finances that are not
in exchange for employment, but must be reported as income to the
Internal Revenue Service (IRS).
Response: Those students who are receiving scholarships, and who do
not qualify for an SSN under these revised regulations, should contact
the IRS to inquire about how to file for an Individual Taxpayer
Identification Number (ITIN) for legitimate income tax reporting
purposes. See information on ITINs at the IRS Web site at the following
URLs: http://www.irs.gov/newsroom/article/0,,id=112728,00.html and

http://www.irs.gov/individuals/article/0,,id=96287,00.html.

We understand from discussions with IRS that students must provide
evidence that they are not eligible for an SSN (letter from SSA) and a
copy of their scholarship acceptance letter when applying for an ITIN
under this provision. We recommend that these students seek the
guidance of legal counsel or a local IRS representative for exact
information and filing requirements.
Form W-7, Application for IRS Individual Taxpayer Identification
Number, and instructions on who is eligible for an ITIN, and how and
when to submit the W-7 are accessible online at http://www.irs.gov/pub/irs-pdf/fw7.pdf

Hiring Issues/Lack of On-Campus Jobs

Comment: Several individuals commented that if new international
students do not have their SSNs in hand, they would be at a severe
disadvantage when vying for jobs against those students who already
have their numbers and/or against U.S. citizen students.
Response: Those students who are looking for work off-campus are
not affected by this regulation and will need to abide by current SSA
regulations that require EADs as evidence of work authority before we
will assign SSNs to them.
As far as how this regulation change would affect an F-1 student
"competing" for an on-campus job with a U.S. student, we do not
believe this regulation will create an additional burden for the F-1
student for several reasons. First, it is important to remember that
many jobs that fall under the DHS definition of "on-campus" are often
jobs that also count as Federal work-study employment available to U.S.
students as part of their "financial aid" package. As such, these are
jobs for which, under Federal regulations, international students do
not qualify. Second, F-1 students cannot be placed in a job if their
being hired into the position would displace an eligible U.S. student
or U.S. worker for that same position. As is clearly stated in 8 CFR
214.2(f)(9)(i), "An F-1 student may engage in any on-campus employment
authorized under this paragraph which will not displace United States
residents." Where direct competition for an on-campus job (which could
include those jobs eligible as Federal work-study positions for a U.S.
student) occurs between an international student and a U.S. student,
DHS regulations require that the position go to the U.S. student.
As far as the concern about how this regulation, in general, might
affect those F-1 students who do not yet have SSNs vying against other
students who do, we anticipate that SSA's new verification procedures
utilizing the data in SEVIS (see next section) will result in F-1
student applicants being assigned SSNs much more quickly than has been
the case in the past. We believe that any disadvantages that might
exist for F-1 students who do not yet have their SSNs, versus students
who do, will be minimized once the school's employer community
understands that F-1 student applicants for on-campus jobs should
receive SSNs very quickly after providing evidence to SSA that they
have job offers.
Also, F-1 students, once they apply for an SSN, can request that
SSA issue them an "acknowledgment letter." This dated letter confirms
that SSA has received an application for an SSN. It can be given to any
SSN applicant whose evidence must be verified before final action can
be taken to assign or deny an SSN application. An F-1 student can show
this letter to an employer as proof that they have filed for an SSN.

Delays in Receiving SSNs Until DHS Verifies Nonimmigrant Status

Comment: A number of commenters noted the delays in processing SSN
requests due to the time it takes for SSA to receive a response from
DHS that verifies the student's nonimmigrant status. One commenter
noted that, "SSN applications for non-immigrant applicants already
take from 2 weeks to 8 months to be approved by the social security
office" and that this regulation would cause even more delays. Some
students are offered jobs that are of short duration, such as being
asked to quickly translate documents, or are asked to help with
orientation sessions when they first arrive on campus at the beginning
of a new school year. Receiving an SSN timely seems even more critical
in these situations.
Response: SSA has recently developed, in conjunction with DHS and
the Department of State, an expedited way to verify the nonimmigrant
status of F-1 and M-1 (vocational/nonacademic) students and J-1
exchange visitors. For these categories of nonimmigrants, if we cannot
verify their status online using the Systematic Alien Verification for
Entitlements system (SAVE), we request verification from the Los
Angeles Immigration Status Verification Unit (LOS ISV) of DHS. LOS ISV
will search SEVIS records. If the school has "registered" or the
sponsor has "validated" that student in the SEVIS database upon the
student's arrival in the U.S. and before we request verification of
that status from LOS ISV, a positive verification response indicating
the student is "active" in SEVIS can be sent to SSA within a few
days. Once verification of the student's status is received, SSA will
assign an SSN and issue an SSN card within two weeks. It is important
to note that while this new SEVIS process speeds up the verification of
student status, there is no information currently contained in SEVIS
that verifies employment for on-campus work.

Hiring and Starting Work Without an SSN

Comment: Quite a few commenters asked how F-1 students could apply
for jobs without first having an SSN. They told us that their schools
and/or private on-campus employers do not hire anyone who does not
already have an SSN. Many commenters said it is against the law to hire
without an SSN, and that SSNs are required for payroll reporting and
end-of-year wage reporting.
Response: A valid SSN is necessary for all employees so that
employers can properly report their wages to SSA and the IRS as
required by law. However, there is no provision in the Act that
requires employers to mandate that employees have SSNs before they can
be hired. Neither is there any provision in the Act that prohibits an
employee from beginning work if he or she has not yet obtained an SSN.
Furthermore, when the employer files the annual wage report, if the
employee has applied for an SSN but has not yet received it, the
employer can still file without the particular SSN by following the

[[Page 55073]]

procedures located on SSA's Web site at http://www.socialsecurity.gov/employer1.htm.
See also the fact sheet entitled, "Employer Responsibilities When Hiring Foreign Workers," found at http://www.socialsecurity.gov/employer/hiring.htm.
However, once the employee has received the number, he or she is required to inform the employer
as soon as possible, and may be requested by the employer to show his
or her Social Security card. The employer can then file a corrected
wage report with SSA and the IRS following instructions that are
available on both Agencies' Web sites, http://www.socialsecurity.gov/employer/how.htm and and http://www.irs.gov.
We recognize this regulation may cause inconveniences for schools using certain payroll software systems. Schools with this problem may wish to discuss a work-around with their software vendor. Also, schools
may contact one of SSA's Employer Services Liaison Officers (ESLOs),
who specialize in payroll reporting issues. ESLOs for each State are
listed on our Web site at: http://www.ssa.gov/employer/wage_reporting_specialists.htm
.

It is SSA's hope that our new expedited method of verifying a
student's nonimmigrant status with DHS using SEVIS will minimize the
delays for F-1 students in obtaining SSNs. We are receiving positive
feedback from our offices that this new verification process that began
in January 2004 is greatly reducing verification times.

Timing of the Payment of Wages

Comment: Several of the commenters raised concerns that if an F-1
student begins work without an SSN, the employer may withhold that
student's paycheck until the SSN is assigned and an SSN card is
received in the mail.
Response: Employers are required to abide by Federal and State laws
with respect to the payment of wages to employees who have completed
the agreed-to amount of work. Also, different States have different
payday requirements. A comprehensive list can be found on the
Department of Labor's Web site at: http://www.dol.gov/esa/programs/whd/state/payday.htm.
We would strongly recommend that employers and/or their payroll or HR departments
check Federal and State labor laws and their own legal counsel before withholding payment of wages from their
employees.
As previously mentioned, there is no provision in the Act that
requires employers to mandate that employees have SSNs before they can
be hired. Neither is there any provision in the Act that prohibits an
employee from beginning work if he or she has not yet obtained an SSN.
Also, we expect that the decreased amount of time it takes to
verify student nonimmigrant status using the new SEVIS verification
process should increase the speed with which SSA can assign SSNs and
students can pass along their SSNs to employers.

Form I-9 Requirements

Comment: Several commenters pointed out the F-1 student's need to
use the SSN card as one of the proofs of employment eligibility on Form
I-9, Employment Eligibility Verification, when they are applying for a
job. They feared that if a student were required to receive a job offer
before they could receive an SSN, they would not get the number in time
to fill out the required I-9 form completely.
Response: The restricted Social Security card given to an F-1
student cannot be used for Form I-9 purposes. Form I-9 was developed
for verifying that new employees are eligible to work in the U.S.
Section 1 is completed and signed by the employee at the time
employment begins and asks the employee to provide his or her name,
address, date of birth, SSN and attest that he or she is authorized to
work in the U.S. The employer then completes and signs Section 2 after
examining certain employee documents, specified as List A, List B and
List C documents, on the reverse side of the Form I-9. Any one document
from List A establishes both identity and employment eligibility.
Therefore, if an employee presents a List A document, he or she does
not have to show the employer any other document. However, if the
employee does not have a List A document, then he or she must establish
identity by providing one document from List B and establish employment
authorization by providing one document from List C.
While the SSN card is shown as a List C document, it only applies
to "unrestricted" SSN cards--those issued to U.S. citizens, asylees,
refugees, legal permanent resident aliens, and citizens of Compact of
Free Association countries (Palau, Micronesia and the Marshall
Islands)--all of whom are authorized by their status to work without
restriction in the U.S. The SSN card issued to an F-1 student does not
meet the List C requirement because an F-1 student who is assigned an
SSN will always receive a "restricted" SSN card. A restricted SSN
card bears one of two legends: "Not Valid For Employment" or "Valid
Only With INS Authorization." (Effective for SSN cards issued March
27, 2004, and later, the printed legend reads "Valid Only With DHS
Authorization.") The F-1 student generally receives the second type.
This means that, for employment purposes, a restricted SSN card does
not provide employment eligibility. (See DHS Web site on Form I-9
located at http://uscis.gov/graphics/howdoi/faqeev.htm, which discusses

that a restricted SSN card with the legend "Valid Only With INS (or
DHS) Authorization" does not satisfy the Form I-9 requirements.) Since
all SSN cards given to F-1 students include this legend, although the
number is valid for wage and tax reporting purposes, the card itself
does not prove employment eligibility. SSA's regulation does not change
that fact.
DHS regulations at 8 CFR 274.a.2, accessible at http://uscis.gov/lpBin/lpext.dll/inserts/slb/
slb-1/slb-9960/slb-27136/slb-

27219?f=templates&fn=document-frame.htm#slb-8cfrsec274a2, discuss
verification of employment eligibility and the Form I-9 requirements.
Further questions regarding on-campus employment and what documentation
is needed to meet the Form I-9 requirements should be directed to the
Department of Homeland Security. We have been advised by DHS that the
Employer, Business, Investor and School Services (EBISS) helpdesk (1-
800-357-2099), which is part of the United States Citizenship and
Immigrations Service (USCIS) Customer Service Support Center, is the
appropriate place to call for Form I-9 questions.

Obtaining Legal Employment

Comment: A couple of commenters suggested that this regulation
would make it harder for an F-1 student to get an SSN and make it more
tempting for a student to get a job illegally.
Response: We do not believe that this regulation will make it so
difficult to get an SSN that F-1 students will resort to working
illegally in the U.S. resulting in negative consequences in their legal
status. SSA is working to strengthen the integrity of the SSN while
balancing the need to ensure that those who do need SSNs for work are
assigned numbers as expeditiously and securely as possible.

Discrimination

Comment: Some commenters questioned the "fairness" of this
regulation on this particular alien category. One individual asked
whether international students who were denied employment could file a
lawsuit for discriminatory practices based on "national origin."

[[Page 55074]]

Response: We do not believe there is anything in the proposed
regulation that discriminates against a particular ethnic or national
group. Any international F-1 student who meets the evidentiary
requirements we have set forth for on-campus employment will be granted
an SSN, regardless of nationality or ethnic origin.

Diversity

Comment: A few individuals commented that the proposed regulation
would have a negative impact on the diversity of the academic community
and the surrounding community at large, particularly the business
community, by imposing a roadblock which could ultimately discourage
international students from attending schools in the U.S.
Response: It is certainly not the intention of SSA in the
development of this regulation to discourage international students
from enrolling in U.S. schools. We are making every effort to provide
assistance to schools and F-1 students and will continue to examine
ways to minimize any unforeseen impact this regulation change may have
on students' work lives in the future.

The Need for an SSN To Secure Goods and Services in the Community

Comment: A frequently mentioned issue was the expressed concern
about the impact that denial, or delayed receipt, of an SSN would have
on a student's ability to assimilate into U.S. society. In particular,
the lack of access to a driver's license was listed as a significant
concern, especially in comments from individuals who represent
community colleges and other institutions where the population, or at
least a significant portion of it, needs to drive to the campus.
Commenters also noted that many foreign students find they cannot lease
an apartment, open a bank account or negotiate utility services without
an SSN, which has come to be a required element to do business with
many providers of goods and services in U.S. society. Some commenters
requested that SSA "do something" to prohibit this business use of
the SSN.
Response: While we recognize the many uses of the SSN by other
Federal and State agencies, organizations and businesses in U.S.
society, the primary purpose of an SSN is for SSA to track earnings
over a worker's lifetime. SSA cannot control the types of information
that private businesses request of their customers. We suggest that
schools work with the local businesses in the community on alternatives
to requiring SSNs from their foreign students in order to access
services.
From our discussions with some credit-checking agencies, we have
been informed that credit checks can be run using the name and date of
birth information without an SSN. While the SSN is often requested on
business forms and applications, the SSN is not always a required data
element if the applicant does not have one, but is required if the
applicant has been assigned an SSN.
With respect to needing an SSN to open a bank account or cash or
deposit payroll checks, it is our understanding from talking to various
banks that most banks will cash a payroll check for a non-customer if
the check is from their bank. This should be helpful to many F-1
students whose employers' banks have branches in the employees' areas.
Some banks charge for this service; others do not. There are other
alternative business entities that cash checks for a fee.
Those students who need to open bank accounts, and who do not
qualify for an SSN under these revised regulations, should contact the
IRS to inquire about how to file for an Individual Taxpayer
Identification Number (ITIN) for legitimate income tax reporting
purposes. See information on ITINs at the IRS Web site at the following
URLs: http://www.irs.gov/newsroom/article/0,,id=112728,00.html and
http://www.irs.gov/individuals/article/0,,id=96287,00.html.

We understand from discussions with IRS that students who need to
open bank accounts must provide evidence that they are not eligible for
an SSN (letter from SSA) and a letter of intent to open an account from
the financial institution when applying for an ITIN under this
provision. We recommend that these students seek the guidance of legal
counsel or a local IRS representative for exact information and filing
requirements.
Form W-7, Application for IRS Individual Taxpayer Identification
Number, and instructions on who is eligible for an ITIN, and how and
when to submit the W-7 are accessible online at http://www.irs.gov/pub/irs-pdf/fw7.pdf.

As stated in Social Security regulation 20 CFR 422.104, the only
circumstance in which SSA can assign an SSN to an alien for other than
work purposes is when it is for a valid non-work reason. The only valid
non-work reasons to assign an SSN to an alien are:
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
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.
See also SSA's recently promulgated regulation "Evidence
Requirements for Assignment of Social Security Numbers (SSNs):
Assignment of SSNs for Nonwork Purposes," published in the Federal
Register on September 25, 2003 (68 FR 55304), and effective October 27,
2003. In relation to this regulation, we have worked with States to
amend their policies regarding the use of an SSN to obtain a driver's
license. This regulation is available online at Social Security's Web
page http://www.socialsecurity.gov/regulations/articles/rin0960_af05f.htm.

We do not consider the need of an SSN in order to apply to purchase
or rent a house or apartment, obtain a driver's license, and apply for
a bank account, to be valid non-work reasons to assign a nonimmigrant
an SSN. An F-1 student who does not qualify for an SSN may qualify for
an ITIN under certain limited circumstances that involve Federal tax
reporting or filing requirements. An ITIN is issued by the IRS. See
section on "Scholarships" for information on applying for an ITIN.
Currently, there are no statutory restrictions on the private
sector's lawful use of the SSN. Action to limit the use of the SSN in
the private sector would require Congressional action and is outside
the scope of this regulation.

Ways SSA Will Provide Assistance to the Public and SSA Employees

Comment: Several commenters remarked on the extra burden this rule
would place on school administrations and F-1 students. Some believe
that this regulation will have an adverse economic effect on the
community by reducing foreign student attendance at approved schools.
One commenter questioned how SSA intends to adequately communicate this
revision of policy to our own employees to ensure that it is carried
out correctly and equitably. Some questioned how the regulation will be
implemented operationally; i.e., what specific types of documents and
information will DSOs and employers be expected to provide?
Response: SSA recognizes that this regulation will: (1) Cause some
inconvenience; (2) need to be communicated widely and explained in
detail to the academic community; and (3) need to be well-understood
and

[[Page 55075]]

applied equitably and respectfully by SSA field employees.
To lessen the inconvenience and to help schools and F-1 students
comply with this rule, we will do the following:
Provide a "sample" DSO letter format that schools can
download from our Web site and/or obtain from local SSA field offices
that can be used to document student attendance and work information;
Provide a "sample" employer letter format that employers
can download from SSA's Web site and/or obtain from local SSA field
offices that can be used in certifying an F-1's on-campus work
relationship (if the student does not have a pay stub or pay slip);
Provide appropriate assistance to F-1 students in SSA
field offices, as well as through the toll-free 800 assistance number
(1-800-772-1213), if they are having difficulty securing the needed
documentation.
As public information tools, we will develop informational handouts
and fact sheets--available online and in SSA field offices--including
an explanation of the new evidence requirements. Some other public
information materials may be developed as needed.
SSA currently has available online at http://www.ssa.gov/employer/hiring.htm
an informational fact sheet for employers, "Employer

Responsibilities When Hiring Foreign Workers," that provides SSA and
IRS Web sites, links to employer reporting responsibilities, and how to
report if the employee has not yet received his or her SSN.
And, SSA will continue to work with schools and advocacy groups on
F-1 student issues as they arise.
For our own employees, we will:
Issue new national instructions that implement the
provisions of the revised regulations;
Provide appropriate training on how the new procedures are
to be implemented; and
Advise our field and regional offices to provide feedback
on how the process is working.

Excessive Paperwork

Comment: Several commenters raised the issue of the increased
amount of paperwork a school's administration would have to create and
process to comply with the proposed regulation. Their concern is that
the already strained resources of school administrations will be
stretched even further if they are required to provide additional
documentation to prove that a student already has employment or an
employment commitment before obtaining an SSN.
Response: While we recognize there will be an increased demand on
school administrators, the primary concern of SSA must be to ensure the
integrity of SSNs by not assigning SSNs for other than work or valid
non-work purposes. We certainly sympathize with the plight of
administrators and that is why SSA will provide assistance to the
schools as described above.

Regulatory Procedures

Executive Order 12866, as Amended by Executive Order 13258

The Office of Management and Budget (OMB) has reviewed these final
rules in accordance with Executive Order 12866, as amended by Executive
Order 13258. We have also determined that these rules meet the plain
language requirement of Executive Order 12866, as amended by Executive
Order 13258.

Regulatory Flexibility Act

We certify that these final rules will not have a significant
economic impact on a substantial number of small entities because they
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 final rules under the threshold criteria of
Executive Order 13132 and have determined that they will 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. There may
be some minimal impact on those States whose academic institutions have
not developed an alternative method in their recordkeeping systems for
identifying F-1 students not eligible for SSNs. There may also be some
minimal impact on States whose academic institutions may be an F-1
student's employer.

Paperwork Reduction Act

The Paperwork Reduction Act (PRA) of 1995 says that no persons are
required to respond to a collection of information unless it displays a
valid Office of Management and Budget (OMB) control number. In
accordance with the PRA, SSA is providing notice that OMB has approved
the information collection requirements contained in Sec. Sec.
422.105(a) & (b) and 422.107(e)(2) of these final rules. The OMB
Control Number for these collections is 0960-0684, expiring 01/31/2007.

(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.)

List of Subjects in 20 CFR Part 422

Administrative practice and procedure, Organization and functions
(Government agencies), Reporting and recordkeeping requirements, Social
Security.

Dated: June 7, 2004.
Jo Anne B. Barnhart,
Commissioner of Social Security.

0
For the reasons set forth 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. Section 422.105 is revised to read as follows:


Sec. 422.105 Presumption of authority of nonimmigrant alien to engage
in employment.

(a) General rule. Except as provided in paragraph (b) of this
section, if you are a nonimmigrant alien, we will presume that you have
permission to engage in employment if you present a Form I-94 issued by
the Department of Homeland Security that reflects a classification
permitting work. (See 8 CFR 274a.12 for Form I-94 classifications.) If
you have not been issued a Form I-94, or if your Form I-94 does not
reflect a classification permitting work, you must submit a current
document authorized by the Department of Homeland Security that
verifies authorization to work has been granted e.g., an employment
authorization document, to enable SSA to issue an SSN card that is
valid for work. (See 8 CFR 274a.12(c)(3).)
(b) Exception to presumption for foreign academic students in
immigration classification F-1. If you are an F-1 student and do not
have a separate DHS employment authorization document as described in
paragraph (a) of this section and you are not authorized for curricular
practical training (CPT) as shown on your Student and Exchange Visitor
Information System (SEVIS) Form I-20, Certificate of Eligibility for
Nonimmigrant (F-1) Student Status, we will not presume you have
authority to

[[Page 55076]]

engage in employment without additional evidence. Before we will assign
an SSN to you that is valid for work, you must give us proof (as
explained in Sec. 422.107(e)(2)) that:
(1) You have authorization from your school to engage in
employment, and
(2) You are engaging in, or have secured, employment.

0
3. Section 422.107 is amended by redesignating paragraph (e) as
paragraph (e)(1), adding a heading for paragraph (e)(1), and adding a
new paragraph (e)(2) to read as follows:


Sec. 422.107 Evidence requirements.

* * * * *
(e) Evidence of alien status--(1) General evidence rules. * * *
(2) Additional evidence rules for F-1 students--(i) Evidence from
your designated school official. If you are an F-1 student and do not
have a separate DHS employment authorization document as described in
Sec. 422.105(a) and you are not authorized for curricular practical
training (CPT) as shown on your SEVIS Form I-20, Certificate of
Eligibility for Nonimmigrant (F-1) Student Status, you must give us
documentation from your designated school official that you are
authorized to engage in employment. You must submit your SEVIS Form I-
20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status.
You must also submit documentation from your designated school official
that includes:
(A) The nature of the employment you are or will be engaged in, and
(B) The identification of the employer for whom you are or will be
working.
(ii) Evidence of your employment. You must also provide us with
documentation that you are engaging in, or have secured, employment;
e.g., a statement from your employer.


Sec. Sec. 422.103, 422.107, and 422.110 [Amended]

0
4. In addition to the amendments set forth above, remove the terms
"Immigration and Naturalization Service (INS)," "Immigration and
Naturalization Service," and "INS" and, in their place, add the term
"Department of Homeland Security" in the following places:
a. Section 422.103(b)(3), and (c)(3);
b. Section 422.107(d)(4), and (d)(6); and
c. Section 422.110(b).
[FR Doc. 04-20614 Filed 9-10-04; 8:45 am]


Last Modified: 09/12/2004