No-Match Letters Returning

The Social Security Administration (SSA) has announced, in spring 2019, it will resume issuance of Employer Correction Request notices, commonly referred to as “Social Security No-Match Letters” or “No-Match Letters”. These notifications will be going to businesses who submitted wage and tax statements (Form W-2) that contain name and Social Security number (SSN) combinations that do not match SSA’s records.

Why Employers Receive “No-Match Letters”

There are a number of reasons, legitimate and illegitimate, why reported names and SSNs may not agree with SSA’s records, including a misspelled name or SSN with a transposed number; a change in the worker’s name due to marriage or divorce; incomplete information on a W-4 or W-2; or use of compound names which are not perfectly aligned in the government databases. Of course, mismatches could also be due to the use of false SSNs.

Although one should not assume a no-match letter equals an unauthorized or undocumented worker, the former Immigration and Naturalization Service (INS) and its successor, Immigration and Customs Enforcement (ICE), have told employers that receipt of one of these notifications creates an affirmative duty to investigate the discrepancy. And an employer’s failure to follow-up with an employee could lead to a finding of constructive knowledge of unauthorized employment.

History of No-Match Letters

Let’s try to put some background to no-match letters. In 1993, the SSA began sending no-match letters to employers who submitted SSNs that did not match its records.

In 2006, President George W. Bush’s administration decided these discrepancies could be evidence of unauthorized employment. Thus, it issued a regulation setting forth procedures for employers to follow upon receipt of an SSA no-match letter. Employers who followed those procedures were provided a safe harbor from allegations of having “constructive knowledge” of unauthorized employment. Employers who did not may be found to have constructive knowledge of employees’ unauthorized work status.

Before the regulation could be enforced, it was enjoined by a federal court. This litigation continued between 2007 and 2009. The Obama administration rescinded the regulation and suspended all communication to employers regarding data mismatches in 2012.

Despite no regulation, ICE still regards an employer’s failure to act upon discovering a Social Security discrepancy as evidence of constructive knowledge of unauthorized employment. During I-9 form audits, Notices of Inspection usually subpoena employers’ records concerning no-match letters.

IER’s Position

Another potential problem is the Immigrant and Employee Rights Section (IER) of the Department of Justice, which is responsible for ensuring that employers don’t go too far in their employment verification duties. IER has stated mere receipt of such a no-match letter, without any other evidence, does not give rise to constructive knowledge that an employee is unauthorized to work. Doing so may be considered an unfair documentary practice or evidence of discrimination based on citizenship, national original, or immigration status.

Guidance from IER

In 2011, the predecessor to the IER, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), provided guidance on “do’s and don’ts” related to No-Match Letters. Here are some of these tips:

  DO:

1. Check the reported no-match information against your personnel records.
2. Inform the employee of the no-match notice and ask the employee to confirm his name/SSN reflected in your personnel records.
3. Advise the employee to contact the SSA to correct and/or update his SSA records.
4. Give the employee a reasonable period of time (no specific time period is listed) to address a reported no-match with the local SSA office.
5. Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
6. Submit any employer or employee corrections to the SSA.

   DON’T:

1. Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
2. Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new I-9 form based solely on the no-match notice.
3. Follow different procedures for different classes of employees based on national origin or citizenship status.
4. Require the employee to produce specific documents to address the no-match.

Conclusion

What happens if your employee does not respond to the letter or otherwise act to resolve the issue? Unfortunately, there is no perfect answer. But HR should not bury their head in the sand. Rather, it should proactively work to resolve the problem.

As you see, this will continue to be a difficult issue for employers. Remember if one gets a no-match letter, follow the above guidance and consult with your immigration/employment attorney before taking any action against an employee.

Bruce Buchanan is a Partner at Sebelist Buchanan PLLC.  Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas, and before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuit.