Aug. 16, 2007 Employers Face New Requirements For Responding To "No Match" Letters

Although the national debate over immigration reform has yet to produce any comprehensive solutions, the federal government continues to step up enforcement of laws prohibiting the employment of undocumented workers. Most recently, on August 10, 2007, the Department of Homeland Security ("DHS") issued new regulations regarding what employers must do when they receive "no match" letters from the Social Security Administration ("SSA"). Failure to follow these new rules will mean that the government can use the employer’s receipt of a "no match" letter as evidence that it knowingly employed illegal workers in violation of federal law.

In what circumstances do the new rules apply?

Each year the SSA issues thousands of so called "no match" letters to employers stating that certain employees’ names and corresponding social security numbers provided on W-2 forms do not match the SSA’s records. These letters are typically labeled "Employer Correction Request." In addition, every year hundreds of employers have their I-9 forms audited by the DHS (or the U.S. Immigration and Customs Enforcement), which sometimes results in a notice from the DHS that documents referenced in the I-9s forms are not assigned to the employees. In both circumstances, the employer is obligated to follow the new DHS regulations.

Although the new DHS rules do not expressly apply when an employer voluntarily initiates a verification of employees’ or applicants’ social security numbers (e.g., through a free Internet verification service), employers may wish to follow these rules in those circumstances as well to prevent any argument that it knowingly employed illegal workers.

What do the new rules require?

Within 30 days of receipt of a "no match" letter the employer should:

First, determine whether the mismatch was the result of a simple clerical error (e.g., a typo or transcription) by the employer in its records or communications to the SSA or DHS. If so, the employer should follow the instructions in the "no match" letter for correcting the error. This will include verifying the corrected employee information with the relevant agency, and resubmitting corrected documentation to that agency. Employers should also document the manner, date and time of the verification.

Second, if the employer does not detect any errors in its records, it should ask the employee to confirm the accuracy of the information on the I-9 form and the referenced documentation. If the employee identifies an error, the employer should take steps to correct the error and document its actions, as described above.

Third, if neither the employer nor the employee can identify any errors, the employer should ask the employee to pursue the matter personally with the SSA. Although the employer is not required to make this request in writing, it is best to do so, and to include the address of the nearest SSA office.

Finally, the employer should follow-up with the employee to ensure the matter has been resolved, and independently verify with the SSA that the original or a new social security number matches the name assigned to such number in the SSA’s records. Alternatively, in the case of a notice of discrepancy from the DHS, the employer should verify that the employment authorization document is assigned to the employee. Employers can make this verification by calling the toll-free number 1-800-772-6270, or through the SSA’s website at www.ssa.gov/employer/ssnvadditional.htm. Employers should make a record of the manner, date and time of the verification.

Within 90 days of receiving the "no match" letter:

If the employer has not been able to resolve the discrepancy issue by following the above procedures, it has an additional three (3) days to have the employee complete a new I-9 Form using acceptable documentation other than the social security number (or other document) in question. If the employee produces alternate acceptable documentation for the I-9, the employer cannot be responsible for knowingly employing an illegal worker based on received the "no match" letter or not being able to resolve the original discrepancy with the social security number.

On the other hand, if the employee cannot produce alternative documents to complete a new I-9 within this 3-day period, the employer risks potential liability or prosecution for knowingly employing an illegal worker if it does not discharge the employee.

Can’t an employer simply demand different work authorization documents or terminate the employee when it receives a "no match" letter?

No. Such a hasty response could create potential liability for citizenship or national origin discrimination, wrongful termination in violation of public policy, and violation of the Immigration and Naturalization Act ("INA"). This is because the SSA’s "no-match" letter (standing alone) is not an indication of the employee’s legal right to work in the U.S. because there are a number of reasons, other than fraud, that the SSA might be unable to match the employee’s name and social security number.

What this means

Admittedly, employers walk a fine line between doing enough in response to a "no match" letter in order to avoid liability for knowingly employing illegal workers, and not doing too much, so as to avoid liability for discrimination or violation of the INA. From a practical standpoint, however, workers who have in fact provided fraudulent social security numbers or other work authorization documents will usually not return to work after being told that the government is questioning the accuracy of their information. However, if the employee continues to report to work, the best and safest approach is to closely follow the new DHS procedures.

This E-Update was authored by Denise Brucker of Paul, Plevin's Transactional Practice Group. For more information, please contact Ms. Brucker, or any Paul, Plevin attorney at 619.237.5200.

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