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New Rules Ready on Social Security "No Match" Letters
August 6, 2007

Sometimes it is important for employers to know what Congress did do, and sometimes it's important to know what Congress didn't do. Congress adjourned for the summer yesterday, and what it didn't do is enact controversial immigration reform legislation. But that doesn't mean that nothing new is happening with immigration law.

As discussed in this news article, last summer the U.S. Customs and Immigration bureau in the Department of Homeland Security proposed new regulations governing what employers must do when the Social Security Administration flags an employee's social security number. This is referred to as receiving a "no-match" letter. 
But the proposed regulations were placed on hold while Congress debated immigration reform legislation. Now that the reform legislation has not materialized, the regulations are expected to be implemented soon.

Receipt of a "no match" letter can put an employer in a difficult position. The employer that does not follow up on a no-match letter risks being charged with knowingly employing an unauthorized worker.

Here's what the U.S. government's Small Business Web site has to say about "no match" letters and the proposed new regulations:

No-Match Letters

When an employer sends employee's W-2 form to the Social Security Administration (SSA), the employee's name and social security numbers is checked against SSA records. The U.S. Immigration and Customs Enforcement (ICE) will also verify the accuracy of information on I-9 forms. If either (or both) SSA or ICE cannot verify employ information, a no-match letter will be sent to the employer indicating that the employee's name or social security number did not match government records.

If you get a no-match letter for an employee, avoid taking immediate adverse action against the employee. A no-match letter simply says the employee's information did not match government records, and is not necessarily an indication that the employee is ineligible to work in the U.S. In fact, firing an employee solely on the basis of a no-match letter may open you up to a discrimination lawsuit. At the same time, if you do not follow up on a no-match letter in a timely manner, you may be cited for knowingly employing an unauthorized worker, which is a violation of Federal law.

So, how do you act on a no-match letter while protecting yourself from legal action from both an employee and the federal government? Current regulations do not provide procedures that help protect an employer from allegations that he knowingly employed unauthorized workers. However, [U.S. Customs and Immigration Enforcement] has proposed new rules that specify "safe harbor" procedures that an employer should follow when receiving a no-match letter. These new rules do not necessarily protect the employer from allegations of discrimination.

A summary of the proposed new rules is available on the Web site of the National Immigration Law Center, and the text of the proposed new rules is available here. And a "tips" document from the US Department of Justice is available here.

One important thing to note: penalties for failure to comply with the proposed new rules are stiff, i.e., from $250 to $10,000 per violation.

As yet, there is no word on exactly when the proposed rules will come into effect.

Employers with questions about the consequences of a "no-match" letter should consult an attorney qualified to give advice on employment and immigration matters.

The posts on this blog reflect the personal views of Jeffrey D. Neuburger, in his individual capacity, and do not necessarily represent the views of his law firm or his clients, and are not sponsored or endorsed by them. The information contained in this blog is provided only as general information for educational purposes, and no warranty or representation is made about the accuracy of the information provided. Blog topics may or may not be updated subsequent to their initial posting. This information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog should not be used as a substitute for competent legal advice from a licensed attorney in your state.

Posted by Jeff Neuburger on August 6, 2007 | Comments (0)