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NEW RULES ISSUED REGARDING SOCIAL SECURITY "NO MATCH" LETTERS

On August 15, 2007, the Department of Homeland Security (“DHS”) published new regulations setting tough standards for businesses that receive “no match” letters from either the DHS or the Social Security Administration (“SSA”). Unless legal efforts to block the new rules are successful, enforcement will begin on September 14, 2007, with penalties of up to $10,000 per violation.

The DHS sends out a “no match” letter to an employer when the immigration-status or employment documentation presented by an employee is inconsistent with DHS records. The SSA sends out a "no match" letter when the combination of name and social security number submitted for an employee fails to match. The new DHS rules clarify that employers may be held liable if they fail to take “reasonable steps” within 90 days of receiving a no-match letter.

According to the DHS:

A reasonable employer checks its records “promptly” after receiving a no-match letter to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in the employer's records. If there is a clerical error, the employer should correct its records, inform the relevant agencies, verify that the name and number, as corrected, match agency records, and make a record of the manner, date, and time of the verification. Immigration and Customs Enforcement (ICE) will deem the employer’s response “reasonable” if it takes the above steps within 30 days of receipt of the no-match letter.

If the records check does not resolve the discrepancy, a reasonable employer should promptly ask the employee to review and confirm the employer’s records. If they are not correct, the employer should take the actions needed to correct them, inform the relevant agencies, and verify the corrected records with the relevant agency. If the records are correct according to the employee, the reasonable employer should ask the employee to pursue the matter personally with the relevant agency, such as by visiting a local SSA office, bringing original documents or certified copies required by SSA — which might include documents that prove age, identity, citizenship, or alien status, and other relevant documents, such as proof of a name change — or by mailing these documents or certified copies to the SSA office. ICE will deem the employer’s response “reasonable” if it takes these steps within 30 days of receipt of the no-match letter.

The DHS rules also describe a verification procedure that the employer may follow if the discrepancy is unresolved within 90 days of receipt of the no-match letter. If the procedure is completed, and the employee is verified, then even if the employee is in fact unauthorized to work in the United States, the employer will not be considered to have constructive knowledge of that fact based on receipt of the no-match letter. The verification procedure involves the employer and employee completing a new Form 1-9 using the same procedures as if the employee were a new hire. The regulation requires the completion of both Section 1 (Employee Information and Verification) and Section 3 (Employer Review and Verification) within 93 days of receipt of the no-match letter.

If the verification procedure fails to verify the employee's identity and work authorization, the employer must choose between (a) terminating the employee, or (b) facing the risk that the DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien, and risk exposure to penalties up to $10,000 per violation.

The text of the final rule is available for download at the Department of Homeland Security’s website, at: http://www.dhs.gov/xlibrary/assets/ice_safeharbor_no-match_finalrule_2007-08.pdf.