USCIS Issues Guidance on Whether or Not to Disclose Fraudulent Use of a Social Security Number on Employment Authorization Application

On September 14, 2012, USCIS issued an update to their Deferred Action for Childhood Arrival (DACA) frequently asked questions page. One of the updates is of significant importance, as it answers the big question that we have all been asking: should a DACA applicant disclose ALL social security numbers used, real or otherwise, on the Form I-765, Application for Employment Authorization.

I'm specifically referring to Question 9 on the I-765 that asks the applicant to provide your social security number and then followed in parentheses states: "include all numbers you have ever used. If any."

Many of us have voiced concerned about this question because the DACA FAQ also contains the following warning:

"USCIS is committed to safeguarding the integrity of the immigration process. If individuals knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to have their case deferred or obtain work authorization through this process, they will be treated as an immigration enforcement priority to the fullest extent permitted by law, and be subject to criminal prosecution and/or removal from the United States." [Emphasis added]

The updated FAQ adresses these concerns by issuing guidance relating to the disclosure of social security numbers:

"New - Q9. How should I fill out question nine (9) on the Form I-765, Application for Employment Authorization? 

A9. When you are filing a Form I-765 as part of a Deferred Action Childhood Arrivals request, question nine (9) is asking you to list those Social Security numbers that were officially issued to you by the Social Security Administration."

Here are my first glance concerns.  

The USCIS FAQ does not have the full force of law, is unsigned by any USCIS official, and is subject to change at any time.  Equitable estoppel does not generally apply in the immigration context, and as a result if an individual detrimentally relies on the current guidance, and if that guidance is later revoked or altered, it is feasible that a future administration may negatively interpret any failure to disclose "all social security numbers used." 

There is an entire line of case law that specifically deals with failure to disclose material facts. Generally, if the concealment of material facts constitutes a misrepresentation it may subject an individual to deportation.

I'm not saying that a change in the current interpretation of Question 9 is imminent, or even likely to occur, but I do see the red flag, so I am mentioning it for consideration.

The bottom line is that I would feel a whole lot more comfortable if USCIS amended the actual Form I-765 rather than just the FAQ.  In a perfect world the question would read: "include all social security numbers ever used that have been assigned to you by the Social Security Administration."

Unfortunately, the world of immigration law is anything BUT perfect.