Social
Security No-Match Letters
The
U.S. Department of Homeland Security has proposed new
regulations pertaining to how employers must respond to
“no-match” letters from the Social Security
Administration (SSA) or from DHS regarding their
employees. The proposed regulations provide “safe
harbor” procedures for employers who receive such
letters. By taking the steps within the timeline set,
an employer would avoid prosecution for “knowingly”
hiring illegal workers.
Under
current immigration regulations, it is unlawful to
knowingly hire or continue to employ a person who is not
authorized to work in the U.S. Such knowledge can be
actual or constructive (the surrounding facts and
circumstances should give rise to suspicions). The
proposed regulations would add two items to the list of
examples that give rise to constructive knowledge: 1)
the receipt of a SSA no-match letter; or 2) written
notice from Homeland Security that in completing Form
I-9 an employee presented documentation that, according
to its records, was not assigned to the employee.
The new
rules then provide a suggested procedure that employers
should follow when they receive such notices in order
not to be deemed to have constructive knowledge that an
employee is an unauthorized alien. This “safe-harbor”
procedure includes attempting to resolve the mismatch
and, if it cannot be resolved within a certain period of
time, re-verifying the employee’s identity and
employment authorization through a specified process.
“Safe Harbor”
Timeline
-
Within 14 days of receiving the no-match letter, the
employer must determine whether the discrepancy is
the result of a clerical or typographical error in
its records. If so, the employer should correct its
records, inform the relevant agencies and verify
that the name and number, as corrected, match agency
records. All of these steps must be completed
within 60 days of the employer’s receipt of the
no-match letter.
-
If
the discrepancy is not the result of a clerical
error, the employer must ask the employee to verify
that the employer’s records are correct. This
request should also be made within 14 days of the
employer’s receipt of the no-match letter. If the
employee claims the information is correct, the
employer should tell the employee to directly
contact the relevant agency (such as a local Social
Security office) to resolve the discrepancy. It is
a good idea to document what you told the employee.
-
The
employee may be given up to 60 days from receipt of
the no-match letter to resolve the discrepancy.
Within three days past that date (therefore within
63 days of the no-match letter) the employer must
verify that the employee has in fact resolved the
discrepancy. A discrepancy will be considered
resolved only if the employer verifies that the
employee’s name matches in SSA’s records a number
assigned to that name, and the number is valid for
work or is valid for work with DHS authorization or
that DHS records indicate that the immigration
status document or employment authorization document
was assigned to the employee.
-
If
the discrepancy is not resolved within 60 days of
receipt of the mismatch letter, the employer should
follow a specified employee identity and work
authorization verification procedure in order to
come under the “safe harbor” protection and not be
considered to have constructive knowledge that an
employee is an unauthorized alien. This
verification procedure requires completion of a new
I-9 form as if the employee were a new hire, except
that the employer cannot accept any document using
the previous mismatched social security number and
any document used to establish identity or
employment authorization must contain a
photograph of the employee.
-
If
the discrepancy referred to in the mismatch letter
is not resolved, and if the employee’s identity and
work authorization cannot be verified using a
reasonable verification procedure, then the employer
must choose between taking action to terminate the
employee or facing the risk that DHS may find that
the employer had constructive knowledge that the
employee was an unauthorized alien. But if the
employee does provide appropriate documentation, the
employer may continue to employ the employee and, if
the employee later turns out to be an unauthorized
alien, the employer will not be held to have
constructive knowledge of the employee’s status.
Conclusion
Following this “safe harbor” procedure would protect
employers from liability for “knowingly” employing
unauthorized aliens. It should also provide an employer
with a solid defense to a wrongful or discriminatory
discharge claim by an employee who is terminated as a
result of a no-match letter, as long as the employer
applies the no-match safe harbor procedures consistently
and uniformly. Note: you should always proceed with
caution before terminating based on mismatched social
security numbers; do not take action based on only the
initial mismatch letter.
The
above rules are only proposals at this point and DHS
solicited comments from business, employer, and
immigration groups and the general public on them. Many
companies or workers are expected to be affected by the
new rules. Homeland Security’s announcement of the
regulations noted that of the 250 million wage reports
the SSA receives each year, as many as 10 percent belong
to workers whose names do not correspond to their social
security numbers. That percentage is higher in certain
industries, such as agriculture and hospitality (hotels
and restaurants).
If you have
any questions regarding Social Security, or any other human
resources topic, please contact Jack Lipovac at (515)
221-1718 or
lipovacj@hr-onesource.com.
