DHS Finalizes New Rule on No-Match Letters

On Aug. 10, 2007, U.S. Department of Homeland Security announced several procedural changes to strengthen enforcement of existing federal immigration laws.

As part of the enhanced enforcement effort, DHS finalized a set of regulations that employers must follow when they receive “no-match” letters from the Social Security Administration (SSA).

The SSA routinely sends “no-match” letters to employers with employees whose Social Security numbers do not match government records.  The new “no-match” rule will take effect September 14, 2007.

The new regulations provide that an employer will not be deemed to have had constructive knowledge of an individual’s unauthorized status if the employer follows the steps below in response to a no match letter or Notice of Suspect Documents.

1.   Within 30 days of receiving a no match letter from the SSA:

a.      The employer must check its records to determine whether the discrepancy is due to a typographical or clerical error.  If so, the employer must: correct the information and inform the SSA of the correct information; and verify with the SSA that the employee’s name and SSN, as corrected, match the agency’s records.

 

b.      Additionally the employer should make a record of the date, time and manner of this verification and store this information with the employee’s I-9 form.  The employer should not perform new I-9 verification, although it may update the employee’s I-9 form or complete a new I-9 form with the corrected information.

 

c.      If the employer determines that the discrepancy is not due to a typographical or clerical error in its own records, it must promptly request that the employee confirm that the name and SSN in the employer’s records are correct.  If the employee states that the employer’s records are incorrect, the employer must correct, inform, verify and make a record, as set forth above.

 

d.      If the employee states that the employer’s records are correct, the employer must promptly request that the employee resolve the discrepancy with the SSA.  The discrepancy must be resolved within 90 days of the date the employer received the written notice from the SSA.

2.   Within 90 Days of Receiving No Match Letter:

a.      If the employer is unable to verify the employee’s name and SSN within 90 days of receiving written notice from the SSA, the employer has three days in which to re-verify the employee’s employment authorization.  To re-verify the employee’s employment authorization, the employer must complete a new I-9 form for the employee using the same procedures as if the employee were newly hired.  However, the employer cannot accept any document referenced in the no match letter or any document that contains a disputed SSN or alien number or a receipt for an application for replacement of such a document to establish work authorization or identity.  The employee must present a document that contains a photograph to establish identity or both identity and work authorization.  The employer must retain the new I-9 form with the prior I-9 forms in accordance with federal laws and regulations.

 

b.      The regulations provide for similar procedures for a safe harbor after receiving a Notice of Suspect Document from DHS.

 

c.      Employers who receive a Social Security no match letter and who follow the procedures set forth in these regulations will be immunized from a finding of constructive knowledge based on the receipt of a no match letter if the individual is ultimately found to be unauthorized.  However, following the safe harbor provision would not preclude DHS from finding that an employer had actual knowledge that an employee is not authorized to work in the U.S.  It also does not preclude DHS from finding that the employer had constructive knowledge of an employee’s unauthorized status based on other factors.

 

As part of the increased enforcement effort, DHS will boost fines for employers that knowingly hire illegal immigrants by 25 percent.

In other action DHS plans to issue proposed rule changes that would reduce the number of identity documents employers can accept in confirming the work eligibility for employees and that would require federal contractors to use the federal government’s electronic employment verification system.

Efforts are underway to expand and improve the electronic verification program, called E-Verify, by increasing the system’s number of data sources.  The verification system would remain voluntary for employers since there is no new law mandating its use.

Practical Application:  The new regulations provide much needed guidance for employers who receive no match letters or a Notice of Suspect Documents.  While employers are not required to follow the procedures in the regulations, it would be wise to do so since the procedures provide a clear method for exercising reasonable care in response to a no match letter.

Additionally, employers should make sure they have documented any action taken to ensure an individual is authorized to work in the United States, such as using the SSA’s Social Security Number Verification System, available at http://www.ssa.gov/employer/ssnv.htm, USCIS’ Systemic Alien Verification for Entitlements (SAVE) Program and EEV, http://www.vis-dhs.com/EmployerRegistration, or ICE’s IMAGE program, http://www.ice.gov/partners/opaimage/index.htm.

 If you have any questions regarding the new DHS ruling, HR-OneSource can provide help.  Please contact Jack Lipovac, SPHR, lipovacj@hr-onesource.com at (515) 221-1718.