Immigration Law Advisory - What to do When the Dreaded "No-Match" Letter Arrives

"No-Match" Regulation Amends the Legal Obligations of Employers who Receive "No-Match" Letters from the Social Security Administration  

On August 15, 2007, the US Department of Homeland Security (DHS) issued final regulations relating to the unlawful hiring or continued employment of unauthorized aliens.  The amended regulation outlines the legal obligations of an employer when the employer receives a "no-match letter" from the Social Security Administration (SSA) or a letter regarding employment verification forms from DHS and sets forth "safe harbor" guidance for employers dealing with either situation.  When  earnings reports (W-2 Forms) sent by employers to the SSA contain a combination of employee name and Social Security number (SSN) that do not match, the SSA sends an "Employer Correction Request" informing the employer of the mismatch. Such letters are commonly referred to as employer "no-match letters."

Although there can be many explanations for a no-match, such as clerical errors and unreported name changes, employers are accountable for the workers they hire and must resolve mismatches identified in the letters. No-match letters issued by the SSA for Tax Year 2006 will be accompanied by a letter from US Immigration and Customs Enforcement (ICE) informing employers on how to respond to the employer no-match letter in a manner consistent with its obligations under US immigration law.

The DHS regulations and the ICE letter set forth a "safe harbor" protocol which describes what steps a reasonable employer should take promptly upon receipt of a no-match letter from SSA or DHS to protect itself from fines or worse.

Within 30 Days of Receipt of the Notification:

The employer must check its records to determine whether the discrepancy was caused by a clerical error, and, if so, correct the error with SSA or DHS, and verify that the corrected information now matches SSA or DHS records. Employers should retain a record of the manner, date, and time of such verification.

If such actions do not resolve the discrepancy, the employer must promptly request that the employee confirm that the name and social security account number in the employer's records are correct.  If the information is incorrect, the employer must make corrections, inform the SSA or DHS of the correction, verify a match on the corrected information, and make a record of its actions.

If the employee confirms that the employer's record information is correct, the employer must promptly advise the employee of the date of receipt of the no-match letter and advise the employee to resolve the discrepancy with the SSA or DHS no later than ninety (90) days after the receipt date of the no-match letter or DHS letter.   

Within 90 Days of Receipt of the Notification:

If the discrepancy cannot be resolved with either SSA or DHS within 90 days of receipt of the written communication from either agency, the employer must attempt to reverify the worker's employment eligibility by completing a new I-9 employment verification form using the same procedures as if the employee were newly hired, with certain restrictions.  Thus a new Form I-9 must be completed within 93 days of the no-match letter, in accordance with the regulation providing three days to complete the form after a new hire.

If the employer cannot verify the employee's work eligibility through completion of a new I-9 form, the employer must decide whether to terminate the employee, or face the risk in any subsequent DHS enforcement action of being determined to have constructive knowledge and being penalized for the continuing employment of an unauthorized alien.

DHS takes the position that applying the safe harbor rule in a uniform manner for all employees whose account numbers or work authorization documents are challenged by the SSA or DHS without regard to perceived national origin or citizenship status should not subject an employer to liability for unlawful discrimination. Further, DHS instructs that an employer should not terminate an employee until the process is completed, unless the employer obtains actual knowledge (such as through an admission by the employee) that the employee is not eligible for employment in the United States.

No "safe harbor" protocol is available where an employee requests employer sponsorship for a labor certification or visa petition and the employee turns out to be unauthorized. Where the request is made by an employee who admits to the employer that he is currently unauthorized, or where the request is inconsistent with information provided by the employee in connection with the employment verification process (i.e., a claim of US citizenship or permanent resident status in Part I of the form), the employer may be charged with actual or constructive knowledge of unauthorized status if the employer permits the employee to continue working for the employer and therefore risk liability.

This is an important development and should be noted by employers.  Failure to comply with the protocol set forth above exposes employers to potential liaiblity and risk that the no-match letter might be used as part of an allegation that the employer had constructive knowledge that an employee was not authorized to work in the United States. 

The new regulation is scheduled to take effect September 14, 2007.  If you have questions about the DHS no-match regulations or would like guidance on implementation, please contact Lynda S. Zengerle at (202) 429-8170 or Aleta T. Okediji, (202) 862-5733.