For years, the Social Security Administration (SSA) has been sending “no-match letters” to employers who had a significant number of employees whose Social Security numbers (SSN) did not match their personal information. The SSA, however, provided unclear guidance for responding to the
letters, and little consequence appeared to befall those employers who ignored them.
Last year, U.S. Immigration and Customs Enforcement changed all that. It announced the use of no-match letters to target employers in high-profile immigration raids, including the April 2006 raid of IFCO Systems that lead to the arrests of thousands of undocumented workers and numerous current and former IFCO Executives.
In June 2006, the Department of Homeland Security followed up the IFCO raids with proposed regulations regarding responding to no-match letters. The final version of those regulations was announced on Aug. 10, 2007, and was published in the Federal Register on Aug. 15, 2007. Employers who do not comply with the regulations will be considered to have “constructive notice” of the unauthorized status of those unauthorized workers who were subjects of a no-match letter and whose employment eligibility the employer failed to re-verify.
In addition to announcing the final regulations, the Department of Homeland Security also announced that it would increase civil penalties by approximately 25% and expand criminal investigations of those employers who knowingly hire unauthorized workers. Employers therefore now face the potential of significant civil penalties and criminal sanctions for ignoring no-match letters.
What should employers do? Here is a brief summary of the steps employers should take after receiving a no-match letter:
1) Within 30 days of receipt of a no-match letter, employers must check their personnel and payroll records to determine if an SSN mismatch was the result of an internal clerical error (such as transposing numbers in a tax form). The employer must then notify the Social Security Administration of the clerical error and verify that a corrected SSN matches SSA records.
2) If the employer is unable to find an internal clerical error for a mismatched SSN, the employer must notify the employee about the no-match letter and ask the employee if the employer’s records are correct. If the employee claims the records are incorrect, then the employee should provide a corrected SSN, which the employer must verify with the SSA.
3) If the employee claims the employer’s information is correct, the employer should direct the employee to resolve the discrepancy directly with SSA. If the employee states that the discrepancy has been resolved, the employer must verify the employee’s representation. If, however, the employee is unable resolve the situation within 90 days of the date of the no-match letter, the employer must re-verify the employee’s eligibility status within three days after expiration of the 90-day period. The re-verification procedure is the same as for new employees, except that the employee may not use a document with the disputed Social Security number and the document used to establish identity must include a photograph. Employers must retain the new I-9 in addition to their prior I-9.
What the regulations do not clarify are how employers should respond to a subsequent SSN no-match for an employee who provides a new SSN in response to a no-match letter, how the SSA will handle the new administrative workload; and how employers should harmonize their anti-discrimination obligations with their heightened immigration-compliance responsibilities.
Therefore, we advise employers to seek assistance from legal counsel if they have to navigate the intricacies of these new regulations.
W. David Osborne is an attorney in Orange County, CA. He can be reached at
dosborne@cdflaborlaw.com. This article originally was written for the California Lodging Industry.
