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New Federal Regulations on No-Match Letters Finally Adopted

August 23, 2007 As expected, the Department of Homeland Security announced the final adoption of new rules governing employer responses to Social Security Administration "No-Match" letters. Under the new regulations, effective on September 14, an employer that does not follow up on a No-Match letter risks being charged with knowingly employing an unauthorized worker.

What is a No-Match letter?

A No-Match letter is generated when the name and social security number of an employee, submitted by an employer on a W-2 form, do not match the record of the Social Security Administration. A No-Match letter is a notification of that fact from the SSA to the employer, or from the Department of Homeland Security (DHS) that the immigration-status or employment-authorization documentation presented or referenced by the employee is not consistent with DHS records.

What the new regulations require

In brief summary, here is what the new "safe harbor" regulations require employers to do when they receive a No-Match letter, as described by the U.S. Immigration and Customs Enforcement (ICE) of Department of Homeland Security:

The DHS regulations and the ICE letter describe with specificity what steps employers should take upon receipt of a no-match letter:

1) verifying within 30 days that the mismatch was not the result of a record-keeping error on the employer’s part;
2) requesting that the employee confirm the accuracy of employment records;

3) asking the employee to resolve the issue with SSA;4) if these steps lead to resolution of the problem, follow instructions on the no-match letter itself to correct information with SSA, and retain a record of the verification with SSA; and
5) where the information could not be corrected, complete a new I-9 form without using the questionable Social Security number and instead using documentation presented by the employee that conforms with the I-9 document identity requirements and includes a photograph and other biographic data.

Employers unable to confirm employment through these procedures risk liability for violating the law by knowingly continuing to employ unauthorized persons.

Proceed with caution

As ICE notes, violating the laws against knowingly employing an unauthorized worker can lead to serious penalties, including stiff fines and possibly, criminal prosecution. On the other hand, the ICE website also contains this important reminder that cautions employers against taking precipitious action against an employee that is subject to a No-Match letter:

"There are many reasons for a mismatch between employer and SSA records, including transcription errors and name changes due to marriage that are not reported to SSA. Employers should not assume that the mismatch is the result of any wrongdoing on the part of the employee. Moreover, an employer who takes action against an employee based on nothing more substantial than a mismatch letter may, in fact, violate the law."

Given the risks faced by employers in failing to comply with the new regulations, and the concurrent risk of overreaction, it cannot be stressed enough, that employers with questions regarding the new regulations should consult an attorney who is qualified to give advice on employment and immigration matters.

Additional information

The text of the Final Rule, 72 Fed. Reg. 45611-45624 (Aug. 15, 2007; effective September 14, 2007) is available in PDF form on the Web site of the Department of Homeland Security, and in searchable text form here. ICE also maintains a "Frequently Asked Questions" site.

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 23, 2007 | Comments (1)