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DHS Gives Employers Guidance on Response to “No-Match” Letters as Workforce Enforcement Accelerates

NAW Legal Advisory - August 2007

On August 15, 2007, the Department of Homeland Security (“DHS”) published its final rule in the Federal Register describing the legal obligations of an employer—under current immigration laws—when the employer receives a “no-match” letter from the Social Security Administration (“SSA”) or a notice of suspect documents from U.S. Immigration and Customs Enforcement (“ICE”). (72 FR 45611). By following the procedures specified in the final rule, the employer can avoid a DHS finding that the company has violated the Federal immigration laws by continuing to employ an unauthorized alien with constructive knowledge of that employee’s illegal status. The rule is effective September 14, 2007, and may be viewed at: http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-16066.pdf.

Background

A “no-match letter” is either a notice to the employer from SSA (such as an “Employer Correction Request”) stating that the combination of name and social security account number submitted for an employee on the W-2 earnings reports does not match the agency records, or a notice from DHS (such as a “Notice of Suspect Document”) notifying the employer that the immigration status or employment authorization documentation presented on I-9 Forms or referenced by the employee is not consistent with DHS records.

There can be several causes for a no-match, including clerical errors, name changes, or submission of information for an alien who is not authorized to work in the U.S. and is using a false social security account number or someone else’s social security account number. Receipt of a no-match letter may be an indicator to an employer that one of its employees may be an unauthorized alien.

The Immigration and Nationality Act makes it unlawful for an employer to continue to employ an alien in the U.S. knowing the alien is (or has become) an unauthorized alien with respect to such employment. “Knowing” includes constructive knowledge, which basically is knowledge reasonably inferred from known facts, one of which under the proposed rule is the employer’s receipt of a no-match letter.

Safe-Harbor Procedure for Employers

The rule creates a safe harbor from DHS using the no-match letter as part of an allegation of constructive knowledge if the employer takes the steps summarized below to resolve the discrepancy. The rule only applies where the employer receives a no match letter from the SSA or DHS. It does not apply where an employer acquires information from other sources that results in constructive knowledge that an employee is not authorized to work in the U.S. or where the employer has actual knowledge that the employee is an unauthorized alien. The procedures must be applied uniformly without regard to perceived national origin or citizenship status. It is recommended that the employer document in writing that the procedures were followed.

Step 1

The employer takes reasonable steps within 30 calendar days of receipt of the no-match letter from SSA or notice from DHS to attempt to resolve the discrepancy.

1. The employer checks its records promptly after receiving a no-match letter to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in the employee’s records, or in its communications to the SSA or DHS. If there is such an error, the employer corrects its records; informs the relevant agency; verifies that the name and number, as corrected, match agency records; and makes and retains a record of the manner, date and time of verification.

2. If such actions do not resolve the discrepancy, the employer promptly requests that the employee confirm that the employer’s records are correct. If they are not correct, the employer takes the actions needed to correct them; informs the relevant agency (in accordance with the letter’s instructions, if any); and verifies the corrected records with the relevant agency. If the records are correct according to the employee, request the employee to resolve the discrepancy with the relevant agency (in accordance with the written notice’s instructions, if any). The employer must advise the employee of the date the employer received the no-match letter and further advise the employee to resolve the discrepancy with the SSA or DHS within 90 days of that date.

Step 2

If within 90 calendar days of receiving the no-match letter, the employer does not verify with the SSA that the employee’s name and social security number match SSA’s records (or resolve questions raised by DHS about the employee’s status), the employer must again verify the employee’s employment authorization and identity within an additional 3 days. The verification procedure requires the employer to complete a new Form I-9 for the employee, using the same procedures as if the employee were newly hired, except:

1. The employee must complete Sections 1 (“Employee Information and Verification”) and the employer must complete Section 2 (“Employer Review and Verification”) of the new Form I-9 within 93 days of receipt of the no-match letter.

2. No document containing the social security account number or alien number that is the subject of a no-match letter, and no receipt for an application for a replacement of such document, may be used to establish employment authorization or identity or both.

3. No document without a photograph may be used to establish identity or both identity and employment authorization.

4. The employer must retain the employee’s new Form I-9 for three years, or one year after employment is terminated, whichever is later.

The following table was included in the Federal Register publication of the rule.

Timing of Actions Under Final Rule
Action Rule
Employer receives letter from SSA or DHS indicating mismatch of employees name and social security number. Day 0
Employer checks own records, makes any necessary corrections of errors, and verifies corrections with SSA or DHS. 0-30 Days
If necessary, employer notifies employee and asks employee to assist in correction. 0-90 Days
If necessary, employer corrects own records and verifies correction with SSA or DHS. 0-90 Days
If necessary, employer performs special I-9 procedure. 90-93 Days


What If The Discrepancy Can’t Be Resolved?

If the discrepancy referred to in the no-match letter is not resolved, and if the employee’s identity and work authorization cannot be verified using the verification procedure described in the rule, 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 and therefore, by continuing to employ the alien, the employer is in violation of the Immigration and Nationality Act. As with any employee termination decision, the employer may have potential liability exposure so consultation with professional advisors is recommended.

Conclusion

The employer may take alternate affirmative steps -- other than the safe harbor procedures -- to ensure that aliens not authorized to work in the United States are not employed. However, the employer would have the burden of convincing DHS that the alternate procedures are reasonable under the circumstances in your particular case. Finally, DHS advises all employers to carefully document their efforts to ensure that unauthorized aliens are not employed in the United States.