Jim Buck is Executive Director of BUNAC, which operates work/exchange programs to and from the USA and other countries for college students and young people. He welcomes comments at jbuck@bunacusa.org.

Can I Hire A Foreign Worker On These J-1 Programs?

Yes. Each participant is a “work eligible individual” who is expressly authorized to accept paid employment. You can see this in the program description Camp Counselor or Summer Work/Travel in q4 on the bar-coded DS-2019 form. Each participant also has a Dear Employer letter for you. This contains an explicit authorization from the program sponsor enabling the participant to work at your camp.

What Paperwork Do I Need To Fill In?

Exactly the same as for a US employee, the I-9 Employment Eligibility Verification form and W-4 form.

A        I-9: Each participant has a sample I-9 showing you how to complete it for a J-1 student. Please note – J-1 students do NOT need to have a Social Security Number in order for you to hire them. The Social Security card is an optional piece of eligibility evidence for the I-9 (see Column C);  all J-1 students are covered under Column A and so do not need to provide any documents from Columns B or C. Moreover, it is explicitly illegal for any employer to refuse to hire someone either because they do not possess a SS card/number or because they are from overseas or because their work authorization is for four months.

Anti-Discrimination Notice. It is illegal to discriminate against any individual (other than an alien not authorized to work in the U.S.) in hiring, discharging, or recruiting or referring for a fee because of that individual's national origin or citizenship status. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire an individual because of a future expiration date may also constitute illegal discrimination.

INS Form I-9.

B        W-4: Again, all our participants have a sample W-4 showing in detail how to complete it.

I Hear There Are Problems With Social Security. What’s The Story?

INS and SSA have put in place new procedures to ensure that SSNs are only issued to eligible foreign nationals. The process for this relies on the speed with which INS and two separate levels of INS subcontractors enter the applicant’s arrival details into an INS database. Currently, this takes 10-15 work days. It also depends on how frequently the local Social Security office checks the database once the documents are entered; this varies widely.

When the applicant applies for a card at the local SS office, it is this INS database that is checked to verify eligibility so that Social Security can start to process an application. However, the SS office will always give a Receipt to the applicant. Sometimes this receipt is marked “No certification of documents” which is unfortunately highly misleading. It is INS’s delay that prevents certification, not anything the applicant has done or failed to do. It categorically does NOT mean that any documents are invalid.

The key point is that once applicants have a receipt, you can put them on your payroll immediately.

If the employee shows the employer, as provided in paragraph (b)(1)(iii) of this section, a receipt issued to him by an office of the Social Security Administration acknowledging that an application for an account number has been received from the employee, the employer shall enter in his records with respect to such employee the name and address of the employee exactly as shown on the receipt, and the address of the issuing office. The receipt shall be retained by the employee.

Code of Federal Regulations, Title 26, Volume 14 [Revised as of April 1, 2002], Chapter I, Part 31, Subpart G, Sec. 31.6011(b)-2, (c) (2)(iii)

The changes to the way Social Security assigns numbers and issues cards may cause a delay …. in receiving the number.  … Note that the employee may work while the Social Security number is being processed.

SSA Publication Employer Responsibilities When Hiring Foreign Workers.

www.ssa.gov/employer/Foreign%20Workers.doc

Even if an applicant has NOT yet applied for a card when they report for work, you can put them on the payroll without waiting - they and you have seven days for that application to be made.

Though not required as a condition of employment, each new employee hired should show his or her Social Security card to you so that:

·         You can check the SSN for accuracy.

·         You can accurately transcribe the name and SSN to the employee’s payroll records.

Social Security Administration Publication 16-004 (Employer’s Guide To Filing Timely And Accurate W-2 Wage Reports, p9)

So How Do I Deal With A “Blank” Social Security Number?

If you need to file a W-2 for a student before his/her number is available, IRS Publication 15 (Circular E, Employer’s Tax Guide) instructs you to write “Applied For” on the W-2. When the number arrives, you file Form W-2C to update the original W-2.

But My Payroll Company/Software Can’t Handle This….

Unfortunately, when INS and SSA added these new requirements, they did not take such ‘real world’ problems into account. However, this is a ‘real-world’ problem – not a legal issue. As stated above and confirmed by law, INS and IRS regulation, you cannot refuse to hire someone or pay him/her simply because a Social Security Number is not yet available.

The use of 000-00-000 or 999-99-999 on a temporary basis is the traditional way to handle this. However, we hear from some employers that their software or payroll company doesn’t like this simple approach. If your payroll is handled internally, you need to set aside a series of dummy numbers just for this purpose. Alternatively, several employers have agreed with their payroll company to use a predetermined sequence for such employees.

Remember, this is only a temporary measure until the number is available. In most cases, you have already seen the Social Security receipt to prove the number has been validly applied for.

This Is A Real Pain!

We couldn’t agree more. Since these changes were first proposed, we have lobbied with INS, IRS and SSA to have this system improved. Please contact your local Senators and Congressmen to express your support for a simpler and faster system.

© BUNAC Spring 2003