Individuals – Social Security Number or Individual Tax Identification Number

Foreign individuals may use either a Social Security Number (“SSN”) or an Individual Tax Identification Number (“ITIN”) when completing tax returns and other tax documents, including a Central Withholding Agreement or a Form 8233.  The ITIN cannot be obtained until the individual has applied for and been denied an SSN.

Applying for an SSN requires a personal visit to a Social Security Administration (SSA) office within the United States.  Any artist who receives work authorization from the United States Citizenship and Immigration Services (such as an “O” or “P” visa) is eligible to receive an SSN.  When the artist enters the country, Customs and Border Protection will update the artist's I-94 record at www.cbp.gov/I94, which includes certain information related to the individual’s visa and work-authorization status.  Automation of the I-94 information began April 30, 2013.  Previously, it has taken up to ten days for the I-94 information to be updated in the computer system.  For this reason, the Social Security Administration requests that a foreign artist wait at least ten days after entering the U.S. before applying for the SSN.  An applicant’s request for an SSN will be denied if his or her I-94 information is not accessible to the Social Security Administration.  Furthermore, at the time the Social Security Administration makes the determination as to whether or not to issue the SSN, the foreign artist must have at least 14 days work authorization remaining on his or her visa.  This means that an artist who is in the U.S. for less than 24 days may encounter difficulties in obtaining an SSN.[1]  The artist needn’t remain in the U.S. while the application for an SSN is pending, but will need to supply a U.S. address to which the card can be mailed.

If an artist is denied an SSN, he or she will receive a rejection letter from the Social Security Administration.  The artist may then apply to the IRS for an ITIN.  Note, however, that the IRS will issue ITINs only to individuals who have applied for and been denied an SSN – the rejection letter from the Social Security Administration must accompany the application for an ITIN. Along with the one-page W-7 ITIN request form, the IRS requires a nonresident individual to submit proof of his or her identity and “foreign status” to obtain an ITIN.  This proof can take the form of a certified copy of the individual’s passport alone, or copies of two of the following: 1) a current national ID card (that includes the individual’s name, address, photograph, date of birth and expiration date); 2) a foreign voter registration card; and 3) a civil birth certificate.  As of June 22, 2012, only copies of documents certified by the agency that issued that document will be accepted with ITIN requests.  The IRS will no longer accept passport or other copies that have been certified by U.S. or foreign notaries.  So, for instance, if an individual wishes to submit a copy of his passport as proof of his identity and foreign status, the individual must obtain a copy of the passport certified by whatever government agency issued that passport.

Note that this new "strengthened" procedure is in place only until the end of 2012, when the IRS will issue further new guidelines for obtaining ITINs.  The IRS has posted additional information on its website to address additional questions regarding the new procedure.

If all of this sounds like a bit of a headache, consider the following:

  • To claim any tax treaty exemptions, an SSN or ITIN is required
  • Foreign artists are required by U.S. law to file a U.S. tax return to report any income earned in the U.S.; an SSN or ITIN is required to file this return
  • Good news – once obtained, an SSN or ITIN is good indefinitely!

FAQs

Must an individual apply for a Social Security Number (SSN) while in the U.S.? Is there no way to apply from abroad?
While an individual used to be able to apply for and obtain an SSN abroad, this is no longer the case. An individual must apply in person in the U.S.

Must an artist remain in the city in which they apply for an SSN, or may they travel in the U.S. while it is pending?
An artist may travel through the U.S. after applying for an SSN.

If an artist can’t remain in the U.S. long enough to qualify for an SSN, what should they do to obtain a U.S. Individual Tax Identification Number (ITIN) from the IRS?
Even if an artist does not have work authorization for a long enough period to qualify for an SSN, the artist should nonetheless make a formal application, and obtain a rejection letter. The IRS will not issue an ITIN to a performing artist without the letter of rejection from the Social Security Administration (SSA).

What can be done if the SSA never responds to an application for an SSN? How can an artist file for an ITIN, if the SSA does not issue a formal letter of rejection?
If the SSA fails to respond, follow up with them until they do issue a rejection letter. The IRS will not issue an ITIN without the letter of rejection from the SSA.

If an artist does not have an SSN or ITIN, are we allowed to pay them?
Yes. When reporting the income at the end of the year on forms 1042 and 1042-S, where it requests the individual’s ID number, write “requested, not provided.”

What form should a nonresident alien submit as proof of a U.S. tax identification number?
If there is no applicable tax treaty exempting the artist from withholding, it doesn’t matter how you obtain this information. The IRS suggests using the 8233 (for individuals) and the W-8BEN (for businesses) to obtain an artist’s tax ID number. In this case, neither of these forms would actually be submitted to the IRS, since tax treaty benefits do not apply. However, if a U.S. arts organization presents one of these forms to an artist, the artist might expect that they will be exempt from taxes. Consider creating your own form for the artist to complete.

The appropriate tax treatment for any particular artist is extremely fact-specific, depending on the artist's country of residence, the amount of money earned by the artist in the U.S., and the artist's status as an "individual" or "business" for tax purposes. The information included in this FAQ is not legal advice. For advice on specific situations, contact a qualified tax attorney.


[1]   It may be worthwhile when applying for a visa for an artist to add at least several days on either end of his or her itinerary when requesting work authorization.  USCIS will usually not object to granting up to an additional five days at the beginning or end of an artist’s stay for meetings, press activities, possible additional performances, etc.