The use of a false Social Security Number or card is a felony,[1]  punishable by a fine, and up to five years in prison.

Types of SSN Fraud

People use false Social Security Numbers to:

  • open bank accounts,
  • get credit cards,
  • get a mortgage,
  • rent and buy vehicles,
  • to avoid reporting income,
  • to even assume the identity of another person; and
  • undocumented workers provide false Social Security Numbers on job applications.

Criminal charges may result from all of these uses.

Social Security Numbers are Powerful

Since 1936, they are the primary way that the United States government identifies people for certain benefits, and taxes.  But it should be understood that Social Security Numbers were never intended as identification numbers for all purposes; they are for the government to determine Social Security benefits and to report income to the IRS.

No one has a right to ask for your Social Security Number without a good reason. The only organizations that can require it are the IRS and the Social Security Administration.  Many entities can refuse to do business with you if you don’t provide it.

Most banks and financial institutions will not give loans or even open a bank account without getting it. Medical providers and other businesses may ask for it, but they are not entitled to it; they only want it so they can report you to credit bureaus if you don’t pay. [2]

Correspondingly, you could argue that it is not illegal under US Code 408(a)(7) to give someone a false Social Security Number if they have no right to get an accurate one.

Providing a False Social Security Number

People are charged with crimes of providing false Social Security Numbers to:

  • open bank accounts,[3]
  • apply for loans,[4]
  • credit cards,[5]
  • mortgages, [6]
  • apply for bankruptcy, [7] and
  • rent and buy vehicles. [8]

But an essential element of these charges is not just the mere use of an incorrect Social Security Number, but proof that there was an intent to defraud to gain a benefit – usually money.

You Must Have Had The Intent To Defraud

People who are charged with a crime of providing an incorrect Social Security Number to a bank for a mortgage or car loan or bank account argue that they did not possess the requisite intent to defraud the bank, they just understood that a Social Security Number should only be disclosed to the IRS or Social Security Administration.

Often they indicate that they just made an error in filling out the paperwork, a typographical mistake.  The mere fact of providing the false Social Security Number is not a crime, absent some intent to obtain a benefit by doing so.

Example – Maria Arias

Take for example the case of Maria Arias.  [9] She came to the United States from Ecuador in 2000, with her husband and one child.  She applied for a job and provided a false Social Security Number to the employer. She then had two more children born in the United States.

She worked at the job until 2010, when she was charged with using a false Social Security Number, under 42 USC 408(a)(7)(B).  She pled guilty and was given one-year probation and a mandatory $100 assessment.

Maria Pleads Guilty

This light punishment was fully justified, said the appellate court.  Her boss had submitted an affidavit on her behalf saying she was an “excellent employee,” and he gave her the job back after she obtained employment authorization.  She had paid taxes on her income, raised a family, and was working a job that probably wasn’t sought by a citizen.

This light punishment may encourage a criminal defendant to plead guilty to get it over with.  But the problem was by pleading guilty, she was convicted of a felony that some courts consider a “crime of moral turpitude.”  Immigration sent her a notice to appear for a removal proceeding.

The AG May Decline to Bring Deportation Proceedings

As a mother of US citizens, normally the Attorney General could decline to bring deportation proceedings, but because she had pled guilty to a “crime of moral turpitude, ” they had to seek to deport her.  Under the immigration laws, conviction for a “crime of moral turpitude” removes any discretion that the Attorney General has, it must commence deportation proceedings.

Collateral Consequences of Pleading Guilty

Thus, the collateral consequences of pleading guilty to using a false Social Security Number on a job application can be serious, even if the sentence is minor.

In Mrs. Arias’s case, the immigration decision was appealed, and the Seventh Circuit Court of Appeals held that using a false Social Security Number was not necessarily a “crime of moral turpitude.”  But it noted that many state laws, and some appellate courts, consider the use of a false Social Security Number as a fraud, and to most courts, fraud is a “crime of moral turpitude” automatically.

The court in Arias said it was “absurd” to consider it a crime of moral turpitude to use a false Social Security Number to get a job.  No one is necessarily harmed when an undocumented person uses a false Social Security Number. The employer wants the employee, and the job is often not sought by citizens.

The Key to Convincing an Immigration Judge

The key to convincing an immigration judge in the first instance that it is not a “crime of moral turpitude” is showing that no one was defrauded, no one was harmed, the defendant paid income taxes, the employer needed the employee, the defendant otherwise lived a crime-free life, and supported a family by working.  It is hard to consider the mere fact of the Social Security Number to reflect a lack of morals under those circumstances.

But it depends on where you are charged, and the words used in the statute you are charged with violating.  If charged with violating state law, that law may specifically state that it is fraud.  For instance, the Ninth Circuit has said that the circumstances of the crime are irrelevant, if the crime, such as forgery, specifically requires intent to defraud as an element.  [10] In that circuit, crimes requiring fraud are automatically crimes of moral turpitude.  [11]

“Knowingly,” “Willfully,” and “Intentionally”

So if you are convicted under a state statute that requires using a Social Security Number “knowingly,” “willfully,” and “intentionally” “to deceive,” courts like the ninth and six circuits will find it to be a crime of moral turpitude. [12]

If the “intent” to defraud is an essential element of conviction, deportation proceedings may automatically follow the conviction of the crime.

The Office of the Inspector General

The Office of the Inspector General at the Social Security Administration gets W-2s that don’t match the agency’s records all the time. They put the records aside in a special “earnings suspense” file until they can be reconciled, which may be never. If the worker later becomes authorized, they could claim such prior earnings to increase Social Security benefits.

The Internal Revenue Service (IRS)

You can be assigned an ITIN number by the IRS to pay taxes with and get a refund. The IRS paid out over 4 billion in tax refunds in 2010 alone. They do not get involved with whether the Social Security Number is valid or not.

They process the tax returns and issue refunds, and ignore notifications from the Social Security Administration that the name does not match the Social Security Number. The IRS does this to encourage undocumented aliens to file tax returns.

So if the only damage is that the worker got the job, the court in Arias points out that it is “absurd” to consider the use of the false Social Security Number a crime of moral turpitude.

Defrauding Financial Institutions

In other circumstances, use of the Social Security Number is specifically geared towards defrauding or deceiving a financial institution, for the purpose of getting money.  The intent is an essential element; the mere use of the incorrect Social Security Number is not automatically fraudulent.

Inadvertent Errors

Many documents are lengthy and onerous to complete, and inadvertent errors in preparing them are common.  The incorrect Social Security Number may have been an inadvertent typographical error.

What Does the Prosecution Have to Prove?

The prosecution must prove that the defendant intended to mislead, for the purpose of getting some “benefit” by using the Social Security Number.  [13]

Obviously, if it is proved that a Social Security Number is used with the intent of getting Social Security benefits you are not entitled to, or to steal from a legitimate beneficiary, or to collect a deceased person’s benefits, to conceal financial assets or get SSI, or some other type of fraud to get money, it does violate 42 US Code 408(a)(7).

Our lawyers are capable of representing clients that are facing federal prosecutions and government investigations for alleged violations of the federal laws described above.

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