On Friday, August 10, the Department of Homeland Security (DHS) issued a final regulation requiring employers to take certain actions with respect to employment eligibility upon receipt of a Social Security No-Match Letter. Employers who fail to comply with the new rule could be deemed as knowingly hiring an illegal worker and could face fines of up to $10,000 per worker and incident.
The final rule was announced in a press conference in which Homeland Security Secretary Michael Chertoff also announced other major initiatives to strengthen border security, including the expansion of exit requirements to prevent overstays as well as a rulemaking to require federal contractors to use the Basic Pilot electronic verification system, now know as E-Verify.
What Is a No-Match Letter?
A No-Match Letter is a letter issued by the Social Security Administration (SSA) that notifies an employer that an employee’s name and/or social security number submitted to the SSA do not match agency records. The purpose of the letter is to gather information to enable SSA to reconcile inconsistencies between its records and the information provided by the employer on the W-2. Letters are sent to employers who have more than 10 employees with mismatched information, as well as to employers who have mismatches for more than 0.5 of 1% (or 1 out of 200) of their W-2 reported workforce.
Social Security mismatches may have a number of root causes, including failure to inform the SSA that a name change has occurred, typographical errors, an error within the SSA database, and individuals who present false social security numbers or use another person’s social security number when completing hiring paperwork.
What Does the New Rule Require?
The new rule requires certain actions by an employer when the employer receives a No-Match Letter from SSA or a letter from DHS regarding the validity of immigration documents. Upon receipt of one of these written notices indicating that a document presented by an employee does not match a record within the system of one of these agencies, the employer must take reasonable steps in a timely fashion to resolve the discrepancy.
The employer must check its records within 30 days of the receipt of the letter to determine whether the discrepancy is the result of the employer’s typographical, transcription, or similar clerical error. If it is, the employer should correct the records; inform the relevant agencies; verify that the corrected information matches agency records; and make a record of the manner, date, and time of the verification to be kept with the employee’s I-9 form.
If the discrepancy is not the result of the employer’s error, the employer must ask the employee to confirm that the employer’s records are correct. If the employee is able to correct the records, the employer should make the correction; inform the relevant agencies; verify that the corrected information matches agency records; and make a record of the manner, date, and time of the verification to be kept with the employee’s I-9.
If the discrepancy cannot be resolved, the employer must ask the employee to correct the situation by bringing the necessary documents to the appropriate agency in order to resolve the discrepancy. The discrepancy will only be resolved upon the employer’s verification with the SSA that the employee’s name matches the social security number in SSA’s records or that DHS verifies that their records indicate that the immigration status or employment authorization document was assigned to that employee. The employer should make a record of the manner, date, and time of the verification to be kept with the employee’s I-9. The discrepancy must be resolved within 90 days.
If the discrepancy cannot be resolved within 90 days, the employer must complete a new I-9 form for the employee by the 93rd day. In completing this new I-9, the employer may not accept any document containing the social security number that could not be reconciled, nor may the employer accept any DHS-issued document that was in question. The employer may not accept any identity document unless it has a photograph.
If the discrepancy cannot be resolved, and the employer is unable to verify the identity and employment authorization of the employee on a new I-9 using different documents, the employer must terminate the employee. Failure to terminate at this point may well lead to a finding by DHS that the employer had constructive knowledge of the employees lack of employment authorization.
For more information, contact the Social Security Number Verification Service (SSNVS) administered by SSA. SSNVS can be accessed by telephone at 1-800-772-6270 or through: