“No Match” Letters: A Potential Sore Spot for Employers

The Social Security Administration (SSA) issues what are known as “no match” letters. These letters are generated by checking an employee’s W-2 form against the SSA’s list of valid social security numbers. If the numbers do not match, a “no match” letter is generated and sent to the employer. Sometimes these “no matches” are due to a clerical error. Other times they can indicate that someone may be using a false social security number or something of that sort.

With the Department of Homeland Security (DHS) working to identify illegal workers, the regulations regarding these “no match” letters have undergone some changes. In particular, the Immigration and Customs Enforcement (ICE) agency under the Department of Homeland Security has issued “safe harbor” measures that employers can take in the event they receive a “no match” letter. These measures have been challenged by several organizations.

The SSA is holding letters addressed to approximately 140,000 employers for 2007 due to an injunction that was filed in October in California ( AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. 07-CV-4472 CRB) . This injunction was filed because the plaintiffs believe that the DHS does not have the authority to implement this rule.

How does this effect employers? The most significant issues for employers center on “safe harbor” measures and “constructive knowledge”. “Safe harbor” measures indicate what employers can do to take proper action when in receipt of a “no match” letter. “Constructive knowledge” may make an employer liable for knowingly employing a person illegally.

There are two ways an employer can be found to have “constructive knowledge” (an employer is knowingly employing a worker illegally):

• Employer receives written notice from the SSA about a discrepancy between an employee’s W-2 and the SSA’s social security database
  
• Employer receives written notice from DHS regarding employment authorization documents (I-9) for an employee
  

What this means for employers is that once a business owner receives either type of notification, he or she is thought to have “constructive knowledge” of the fact that an employee might be employed illegally. This is where the “safe harbor” measures come into play. An employer must act upon receipt of either type of notification in order to avoid liability for unlawful employment practices.

“Safe harbor” measures involve the employer taking action to verify the employee’s immigration status by checking his or her records, and making any necessary corrections. Employers have 30 days to take this type of action. If in taking such action, an employer finds that an employee does not have the proper documentation on file, the employer may ask the employee to assist in obtaining the proper paperwork. If involving the employee becomes necessary, there is a 60 day timeframe in which to take action. Therefore, employers have 90 days to address the employment verification discrepancy, whether it is brought forth by the SSA or the DHS.

As 2007 comes to a close, the “no match” letters are still being held by the SSA. Employers with concerns regarding these matters should consult the sources below for more information and for updates as business begins for 2008. By understanding the purpose of “no match” letters and the meaning of “constructive knowledge”, employers should be better able to handle issues regarding their employees’ legal work status.

Sources consulted for this article:

1. "Safe Harbor Procedure for Employers Who Receive 'No Match' Letters" Accessed: 12-26-07  The official document from the Department of Homeland Security that outlines the procedures and comments on the ruling in great detail.
   
2. "Update on Social Security 'No Match' Letter Regulation"
   Accessed: 12-26-07   This is an article on the “Immigration Law for Employers” blog which is part of Holland and Hart’s Immigration Law Practice. It offers an overview and legal interpretation from immigration law experts. This website is a good resource for employers.
   
3. "Social Security 'No Match' Letters: A Primer"
   The article published by the Migration Policy Institute, a non-partisan, not-for-profit group that studies the movement of people.