AZ Immigration Compliance Blog

For years, many Employers have received letters from the Security Administration (SSA) including a list of social security numbers received in wage reports that do not match data in government records.  Until recently, it has been unclear on what needed to be done with this information.  In fact, many of these letters have gone ignored.

Now, more than ever, Employers need to pay special attention to these no match letters from the SSA. On August 10, 2007, DHS finalized a set of regulations that employers must follow when they receive “no-match” letters from the Social Security Administration (SSA).  The new “no match” rules go into effect on September 14, 2007. Under the new rules, employers will be in violation of federal immigration laws if they ignore the “no-match” letters and fail to take corrective steps within 90 days.

Out of about 250 million wage reports that the SSA receives each year, as many as 10 percent belong to employees whose names do not match their Social Security numbers (SSNs) on record, the DHS stated. When an employee’s SSN does not match the employee’s name on tax or employment eligibility documents, the federal government issues a no-match letter asking employers to resolve the discrepancy.

Under the new rules, employers will be required to take the following steps in response to a no match letter in order to qualify for the safe harbor provisions and avoid possible penalties and prosecution.

Within 30 days of receipt of the “no match” letter the employer must:

STEP 1: Check the employer’s records to ensure that the discrepancy did not result from a typographical or similar clerical error.

• If so, correct the records and resubmit the information.
•  If not, move to Step 2;

STEP 2: Ask the employee promptly to confirm that the employer’s records are correct. 

• If the records are not correct, take steps to correct the error and inform the SSA. Verify documents through the E-Verify System and retain verification with the records.
• If the employee confirms that the records are correct, move to step 3;

STEP 3: Ask the employee to pursue the matter personally with the relevant agency (such as contacting the SSA). This must be done within 90 days of receipt of the “no match” letter. Be sure to let the employee know the date the discrepancy needs to be resolved.

Upon receipt of corrected documents or certified copies:

• Have the employee complete a new Form I-9 using the same procedures as if the employee was newly hired within 93 days of receiving the no match letter. 
• If you are unable to verify that the employee’s name matches the number assigned, the employer would be required to terminate the employment relationship.

Instructions on the new regulations will be accompanying the no match letters in preparation by the Social Security Administration.

The DHS says it will consider any employer that follows the proposed guidelines to be in a “safe harbor” if it has attempted to comply with the regulations in good faith. The DHS provided that if an employer is unable to resolve the no match, the employer will be required to fire the employee “or run the risk that DHS will find that the employer had constructive knowledge of employing an undocumented worker unauthorized to work in the U.S.”

When an employer alerts an employee about a no match, one of two things usually happens, according to John Gay, senior vice president of government affairs and public policy with the National Restaurant Association. The employee either disappears or comes back. If he or she returns, the employee shows that the numbers were transposed or presents a Social Security card with a different number, which starts the process again, he remarked.

To avoid violating any potential antidiscrimination laws, employers must be consistent in applying these procedures to all employees indicated on the no match letter without regard to any perception of national origin or status of citizenship.

Additionally, the employer should not fire an employee upon receiving the no match letter. In fact, a no match letter states, “this letter does not imply that you or your employee intentionally provided incorrect information about the employee’s name or SSN. It is not a basis, in and of itself, for you to take any adverse action against the employee. Any employer that uses the information in this letter as a pretext for taking adverse action against an employee may violate state or federal law.”

For further information on the regulations and guidance on handling no match letters, please visit the U.S. Citizenship and Immigration Services website at www.uscis.gov.