We all have clients who have worked without an employment authorization document (EAD) and have provided their employer with either a fictitious Social Security number (SSN) or a number that happens to belong to someone else. After the worker has obtained an EAD, they should take steps to unscramble their Social Security earnings record to gain credit for work that was never posted or was posted to the wrong account. In that way, once they are fully insured under the social security program, they would be eligible to qualify for retirement or disability benefits, in addition to Medicare.

Fully Insured Status The Federal Insurance Contributions Act (FICA) requires employers to withhold Social Security and Medicare taxes from the worker’s wages and send them to the Internal Revenue Service (IRS). The employer withholds 6.2 percent of gross wages as Social Security tax and 1.45 percent as Medicare tax. The employer matches this for a total of 15.3 percent. Some employers withhold the taxes but fail to send the withholdings to the IRS. Others dutifully withhold the taxes and then report them to the account provided by the undocumented worker, which could be aa fictitious account or someone else’s account.

To be fully insured and eligible to receive retirement benefits, the worker must have accumulated a minimum of 40 “qualifying quarters” in covered employment. This assumes they have a valid Social Security account to which earnings have been posted; to create an account, the worker must have an EAD. But earnings can still be posted to their account and credited toward the 40-quarter requirement even if the EAD has expired and the person continues working.

The amount of wages required to earn a quarter of coverage in 2024 is $1,730. The amount increases slightly every year; in 2023 it was $1,640. One can earn up to four quarters per year, regardless of when they earned them during the calendar year. That means a person has earned four quarters in 2024 after posting $6,920 in wages and has obtained “fully insured” status after working as few as 10 years. Nicaraguans and Hondurans, for example, became eligible for Temporary Protected Status (TPS) and an EAD in 1999; Salvadorans became eligible in 2001. The Deferred Action for Childhood Arrivals (DACA) program went into effect in August 2012.

Lawfully Present

A noncitizen can only receive retirement or disability benefits if they are “lawfully present in the United States.” This includes persons who have been granted the following immigration status: lawful permanent resident; asylee; refugee; Cuban/Haitian Entrant; parolee; battered spouse, child or parent; victim of trafficking (T visa); withholding of deportation or removal; certain nonimmigrants (such as H-1, H-2A, H-2B); TPS; Deferred Enforced Departure or Deferred Action (except for DACA recipients); and a stay of removal. It also includes applicants for any of these immigration benefits: TPS, Special Immigrant Juvenile Status, T visa, adjustment of status, asylum, or withholding of deportation or removal.

Some of the U.S. Citizenship and Immigration Services (USCIS) forms ask the applicant if they want the Social Security Administration (SSA) to issue them an SSN and card. For example, this is asked of applicants for adjustment of status (Form I-485) and for an EAD (Form I-765). The Department of State (DOS) also includes this question in its Online Immigrant Visa and Alien Registration Application (DS-260). If the applicant indicates that they want an SSN and card, they must consent to the necessary exchange of information between USCIS or DOS and the SSA.

Obtaining an Earnings Record and Correcting Simple Errors

Once the worker has obtained a valid SSN, they can create an online my Social Security account through the SSA website. They can then acquire their most current earnings statement through this online account or by completing and submitting Form SSA-7050-F4, Request for Social Security Earning Information.

The next step is to examine the recorded earnings to see if the report is accurate. If the employer has failed to correctly report all the earnings, the worker can contact SSA at 1-800-772-1213 or make an appointment with the local SSA office and request that the record be amended. In many cases where the worker is present in the local office and supplies proof of identity and earnings, the SSA can correct the report quickly and will not require the worker to complete other forms.

Time Limit to Correcting Earnings

An earnings record can be corrected at any time up to three years, three months, and 15 days after the year in which the wages were paid. That means if wages were paid in calendar year 2020, the period for correction was Jan. 1, 2021, through April 15, 2024, and the record of wages became final on April 16, 2024.

Important exceptions apply, however, when the worker wants to:

• Correct an entry established through fraud;
• Correct a mechanical, clerical, or other obvious error;
• Correct errors in crediting earnings to the wrong person or to a person not shown in SSA’s records; or
• Add wages paid in a period where the employer did not report them.

These exceptions, therefore, would cover situations when a worker wants to get credit for earnings never posted, posted to a fictious account, or posted to a valid account belonging to a different person.

The Procedure for Unscrambling a Worker’s Account

In all but the easiest cases, the worker will be required to complete and file Form SSA-7008, Request for Correction of Earnings Record. This occurs when the worker has not provided sufficient evidence of earnings or the SSA cannot readily verify that the earnings were posted to either a “suspense” file (where earnings are stored when reported to a fictitious account) or some other account. A worker can still make a claim if the employer failed to report earnings altogether, just as they can for earnings reported to a fictious account or a wrong account.

Proving the earnings will likely be the biggest challenge. Documentary proof could include W-2 forms, pay stubs, tax returns, and any other written evidence that can support the claim. If the worker can’t find any documents that show their earnings, they should write down the following information to the best of their memory: where they worked, the name of their employer, the dates they worked, how much they earned, and the name(s) and Social Security number(s) they provided to the employer. This will be an even greater challenge for farmworkers who were paid in cash and never knew the name of their grower/employer but only the name of their crew leader.

The Form SSA-7008 asks the following questions of the worker: name, all aliases used, date of birth, SSN and/or any other fictitious numbers provided to the employer, the years/months of employment that show inaccurate earnings, employer’s name and address, and the correct amount of wages earned during that period. The worker is allowed space to provide any other helpful information. The form also asks if the worker wants to give SSA permission to disclose their name to the employer. Some workers might fear retaliation if they are currently working for that employer or plan to work for them again; most claims will be for work performed for a one-time prior employer. Failing to give consent to the disclosure could hinder the SSA in its investigation.

Criminal Penalties for Using a Fictitious SSN or One Belonging to Someone Else

The worker will likely want to know if there is any risk in admitting to using a fictitious SSN or someone else’s SSN. First the bad news: Using a fictitious SSN or an SSN that does not belong to the worker is prohibited under several criminal statutes. These laws aim to prevent identity theft, fraud, and other related crimes. Here are some of the key statutes:

42 USC § 408

This law makes it a felony to use an SSN obtained with false information or to use someone else's SSN for the purpose of obtaining benefits, increasing the amount of the benefits, concealing one's identity, “or for any other purpose.” This would govern situations when a worker applies for an SSN using false information or tries to obtain benefits using someone else’s identity. It would also cover a worker providing false information (name, SSN or fictitious number) to an employer who then forwards that to SSA if it resulted in “causing a payment” or an increase in a payment to which the worker was not entitled. Unfortunately, it would also cover the provision of the false information to the employer if done in the context of complying with federal employment verification laws. The elements of the crime are simply: (1) false representation of a social security account number, (2) with intent to deceive, (3) for any purpose. Mere possession of false identity documents, including a false SSN, might not be enough to convict, however, since courts have held that “false representation” requires some positive action, not merely passive possession. Congress passed a special law exempting from prosecution lawful permanent residents and lawful temporary residents who obtained their status through the legalization provisions of the Immigration Reform and Control Act and who may have violated 42 USC § 408(a)(6) or (7) prior to 1991. This was to encourage workers’ coming forward and unscrambling their accounts with SSA.

• 18 USC § 1028

  This law criminalizes identity theft and fraud related to possessing a personal “identification document,” which would include an SSN. It covers producing or possessing false identification documents or using someone else's identity information without lawful authority. This law would cover situations where the worker possesses or presented to an employer an SSN card belonging to someone else; it would not cover situations where the worker simply provided a false number.

• 18 USC § 1028A

  This statute imposes an additional mandatory two-year prison sentence for anyone convicted of certain felonies involving the unauthorized use of another person's identity, including their SSN.

• 18 USC § 1001

  This law covers the making of any “materially false, fictitious, or fraudulent statement” to any federal agency. This can involve falsifying, concealing, or covering up a material fact or making any materially false, fictitious, or fraudulent statement or representation. It would appear to cover false statements on the Form I-9, Employment Eligibility Verification.

• 18 USC § 1028

  This statute focuses on fraudulent activities involving identification documents, including SSNs. It covers the possession of an “identification document” that is “stolen or produced without lawful authority knowing that such document…was stolen or produced without such authority.”

• INA § 274A, 8 USC § 1324a

  Employers who knowingly accept or use a false SSN in connection with employment may be subject to civil and criminal penalties under immigration laws. This may discourage some employers from voluntarily participating in SSA investigations to clear up a worker’s earnings record.

Now the good news: law enforcement agencies have little interest in prosecuting workers who used a fictitious SSN for employment purposes and are now simply trying to correct their earnings record. They usually only prosecute persons for using a false SSN in cases where the false SSN: (1) was used to commit financial fraud, such as obtaining loans, credit cards, or government benefits; (2) resulted in significant harm to another individual's financial status or credit history; or (3) is connected with an act of terrorism. The government will prosecute individuals who have a history of using false SSNs or other fraudulent practices, indicating a pattern of criminal behavior. They will also go after cases involving large-scale operations, such as rings that produce and sell false identification documents. For the most part, assuming the worker used the false SSN only to get a job, they have little to fear.

Prosecution decisions are made on a case-by-case basis and take into consideration the specifics of the offense, the harm caused, and the likelihood of securing a conviction. Bear in mind, however, that an administration that wants to target undocumented workers and use the threat of criminal prosecution to obtain their consent to speedy removal could employ a full arsenal of criminal laws.

Conclusion

As workers approach the age of retirement, they should be made aware of their right to collect social security benefits, assuming they have a valid account, have achieved “fully insured” status, and are “lawfully present.” The process of unscrambling a worker’s earnings record may be challenging and contingent on the documentary proof they have kept. While presenting a false SSN card to an employer during I-9 compliance is a crime, absent other circumstances, there is little risk of criminal prosecution at the present time.