Got EAD but delay in getting SSN! employed! help..

[amosherron 1]

My wife started working with her EAD, but the SSA is delaying her SSN because they have to do further verification with homeland security (not sure why).

Her employer doesn't know how to file her in order to deduct taxes so her employer said she would give her a 1099 at the end of the year! My wife is an employee and not an independent contractor. From my understanding if she has to file a 1099 she will have to pay higher taxes as oppose to a W-2. Has anyone been in this situation? What should we do?

I do not think it is legal for her to receive a 1099, but she doesn't have her SSN yet because of SSA delays! Her employer said she would put her on W-2 once she gets her SSN but that will be 4 weeks away and she has already been working for a few weeks now already.

[Hypnos 6,576]

She most likely cannot be paid without a social security number, since one is required in order to properly report her income to the IRS and for her payroll taxes to be deducted. It's unusual that a company would let someone begin employment without a social security number for precisely this reason. It's also not legal to simply classify her as an independent contractor and go the 1099 route instead.

Did she perhaps apply for her social security number in a different name than the one on her visa or EAD?

[newacct 688]

This page addresses how the employer should report it on W-2 if the employee doesn't have a Social Security Number yet. But W-2 is filled out once a year at the beginning of the year and it's a long time until then, so that's not really the problem.

Whether you are an employee or independent contractor is not up to the company to decide arbitrarily; it is determined by the nature of your work and relationship with the employer. If you are performing work in the same capacity and level of control as other people who are employees, then you are also an employee. If you were originally hired to do work as an employee and you are still doing the same work in the same capacity and level of control, you are still an employee. There is a form you can file when filing taxes if you are a misclassified worker. I'm not sure if there is something you can do ahead of time, though; perhaps filing an SS-8 to ask for a determination?

I think maybe this can also considered immigration-related employment discrimination. They are basically saying that you cannot work as an "employee" if you don't have a Social Security Number yet, but they are not allowed to make documentary requirements for employment beyond what is required by Form I-9 to verify employment authorization. Check with the Office of Special Counsel for Employment-Related Unfair Employment Practices.

[KayDeeCee 4,893]

What documents were used to apply for the SSN? Did you use the married name or name on passport/visa?

~ Moved from AOS from Family Based Visas to Social Security Numbers - topic about SSN~

[amosherron 1]

This page addresses how the employer should report it on W-2 if the employee doesn't have a Social Security Number yet. But W-2 is filled out once a year at the beginning of the year and it's a long time until then, so that's not really the problem.

Whether you are an employee or independent contractor is not up to the company to decide arbitrarily; it is determined by the nature of your work and relationship with the employer. If you are performing work in the same capacity and level of control as other people who are employees, then you are also an employee. If you were originally hired to do work as an employee and you are still doing the same work in the same capacity and level of control, you are still an employee. There is a form you can file when filing taxes if you are a misclassified worker. I'm not sure if there is something you can do ahead of time, though; perhaps filing an SS-8 to ask for a determination?

I think maybe this can also considered immigration-related employment discrimination. They are basically saying that you cannot work as an "employee" if you don't have a Social Security Number yet, but they are not allowed to make documentary requirements for employment beyond what is required by Form I-9 to verify employment authorization. Check with the Office of Special Counsel for Employment-Related Unfair Employment Practices.

Thank you so much for this information!! We are gonna pass some of this a long to the employer because she is trying to do the right thing but isn't sure what to do.

What documents were used to apply for the SSN? Did you use the married name or name on passport/visa?

~ Moved from AOS from Family Based Visas to Social Security Numbers - topic about SSN~

We used her EAD and Passport, we used her Married name which is the same name on her EAD and the same name used to apply for AOS.