As more and more workers acquire temporary legal status in the U.S. and receive new work authorization, employers will be faced with the following common scenario.
An employee has recently legalized their status and acquired an employment authorization document (work permit) from U.S. Citizenship & Immigration Services (USCIS). She then goes to the Social Security Administration and obtains a new social security number.
When the employee was originally hired they presented what appeared to be valid work authorization documents. Now the employee comes forward and says my real name is different than the one used at the time of hire, and here is my new social security number and work permit.
In this situation, the employer should fill out a new I-9 with the employee, attach a memo explaining the situation and attach a copy of the new work permit and staple all of this to a copy of the old I-9.
Usually, the employer must terminate the old name in their HR information system and process the new one as a new hire. However, seniority must be retained. Under California law (AB 263 eff 01/01/2014) an employer is prevented from taking adverse action against an employee who legalizes their status and presents a new name, social security number, and work authorization document. The prior misrepresentation is also forgiven under California law and isn’t grounds for termination.
Perhaps the most practical approach is to consider the event as a name change with the unusual component that the social security number has also changed.
About the Author: Greg Berk is Special Counsel at Sheppard Mullin where his practice focuses exclusively on immigration and visa matters. He can be reached at firstname.lastname@example.org.