The Social Security Administration, also known as the SSA, each year mails out “no-match” letters to employers whenever the names or the social security numbers printed on the employer’s Form W-2 fail to match up to SSA’s own SSN database. These no-match letters let both the employer and the worker know that the worker is not being credited for the earnings collected on the pay statements, and thus, the worker must take steps to contact the SSA to correct this error. It is important to know that for the purposes of the SSA, no-match letters are not used to verify whether an individual is eligible to work in the U.S. No-match letters may be sent directly to the workers at their home address, or they can be mailed to the employer when the SSA does not have the worker’s address, or an employer will receive such a letter if more than ten of its employees’, or 0.5% of the workforce’s SSNs do not match during a given year.

In many cases, no-match letters are the result of administrative processing at the SSA. Common reasons for the issuance of a no-match letter include typographical or clerical errors on the Form W-4 or W-2; changing of the worker’s name because of marriage or divorce; incomplete information on the Form W-4 or W-2; or some other name confusion. It is very important to note that just because a worker is issued a no-match letter, does not mean the worker is working illegally. In fact, according to SSA statistics, there are about 17.8 million errors in the SSA database, and about 12.7 million of them relate to U.S. born citizens. Nevertheless, U.S. Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) does consider the no-match as a possible indication that the employer may be employing an undocumented foreigner worker.

“Safe Harbor” Steps on Receipt of No-Match Letters

On August 15, 2007, Department of Homeland Security (DHS) published specific guidelines on how employers should deal with no-match letters. DHS followed up with supplemental guidelines in March 2008 amending certain provisions of the August 2007 regulations. In these series of regulations, while DHS makes it clear that employers may not take adverse action against an employee such as firing or laying off the worker after receiving a no-match letter, DHS does suggest steps for the employer to follow on how to deal with this situation. According to DHS, an employer will not be considered to possess ‘constructive knowledge” that an employee is an unauthorized worker if the employer undertakes certain “safe harbor” steps. DHS is explicit that these rules would apply to all employees with no-match letters, not just non-native U.S. workers. Essentially, this means:

  1. After receiving the no-match letter and within 30 days of the receipt, the employer must first check its own records to confirm that the no-match is not due to errors in its own records. If there is an error, then the employer should correct its records, and alert the SSA and the DHS – if the employee is a non-native U.S. worker - of this error. Then, the employer should verify the correct information and SSN with the government records.
  2. If the employer’s records are correct, then the employer must give the worker the no-match letter immediately, or within five (5) business days of the employer completing its internal record verification. The employer should ask the employee to make sure that the information in its employment records is in fact accurate. If the employee provides the corrected information, then the employer has to correct its own records first, and then notify the federal agencies and also verify the corrected information does match government records. However, if the employer’s records are correct, then the employer should request the employee to contact the federal agencies directly and work to resolve the discrepancies within 90 days of the receipt of the no-match letter by the employer. DHS notes that the employer must document and keep full records of the entire verification process with the employee’s I-9 form.
  3. If somehow this discrepancy is not resolved within 90 days of the receipt of the no-match letter, the employer must re-verify the employee’s employment eligibility and complete a new I-9 form. The employer will have 3 days to complete this process. The employee must use alternative identification that contains his/her photographs, and the employee may not use any of the documents that are the subject of the no-match letter as part of the re-verification process.
  4. If the no-match is still not resolved, and the employer still cannot verify the worker’s employment eligibility and identification, even after completing a new I-9 form, then the employer has to decide whether to terminate the employee or risk being considered by DHS to continue to employ an undocumented worker in violation of immigration laws. Employers would face criminal prosecution, as well as monetary fines for knowingly employing undocumented workers.


While these steps outlined above effectively place the U.S. employer in the role of immigration law enforcer, DHS has unsuccessfully tried to argue otherwise. In fact, in DHS’ supplemental guidelines published in March 2008, DHS limited the impact of the no-match rules by saying that these regulations do not impact workers who were hired prior to November 6, 1986. Also, the employer does not have to retain any new documents or records if it simply follows the safe harbor rules that DHS outlined for the employer. DHS's plans to use no-match letters as a tool for immigration enforcement are on hold at the moment, as organizations including the AFL-CIO, the American Civil Liberties Union, and the National Immigration Law Center have filed legal action in U.S. federal court and have obtained an injunction against DHS preventing DHS from moving forward.

Conclusion

We have seen stepped up workplace enforcement of immigration laws by the Department of Homeland Security in the last year, and one of the tools that DHS relies perhaps too heavily on to start their investigations is the SSA No-Match letter. The reason this is an issue is because the majority of the no-match letters are the result of clerical error or record keeping mistakes at the SSA. Therefore, there is a high degree of unreliability with using no-match letters to crackdown on illegal employment. In addition, with these safe harbor steps in place, the employer is often placed in the awkward position of having to act as an arm of the DHS, thereby frequently creating unnecessary burden on the employer.

Please note: Immigration laws and regulations are constantly changing and this article is provided for informational purposes only and is not to be construed or relied upon as legal advice under any circumstance. Please refer to our legal disclaimer for additional details.

 

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