May 13, 2021
In April 2021, the Social Security Administration (SSA) announced they are no longer sending Social Security no-match letters, also known as Educational Correspondence (EDCOR) notices, to employers. According to the SSA, the agency is discontinuing the issuance of no-match letters “to focus on making it a better, easier, more convenient experience for employers to report wages electronically. We will also seek out new opportunities to educate employers.”
SSA no-match letters have been sent on and off to employers for at least the last 18 years. The Obama Administration had discontinued them in about 2012 but, in March 2019, the Trump Administration’s SSA resumed sending the letters to employers when the SSA found an employee’s name and SSN combination submitted on a W-2 did not match their records. According to the Chicago Sun Times, SSA sent 803,000 notices in 2019 and 791,000 notices in 2020.
In March 2021, a dozen members of Congress wrote to the SSA asking it to suspend the use of no-match letters. U.S. Rep. Jesús García, D-Chicago, stated the no-match letters are costly and putting workers in a vulnerable position. Although the letter states employers are prohibited from taking adverse action against an employee, such as laying off, suspending, firing, or discriminating against the individual for receipt of a no-match letter, the reality is some employers have discharged employees based solely on receipt of a no-match letter. Immigration advocates said the letters have been used to target immigrant workers and have caused some people to lose their jobs.
The stated purpose of the no-match letter is to notify employers of discrepancies and ensure accuracy of the employee’s earnings record. There are a number of reasons why reported names and SSNs may not agree with the SSA’s records. It could happen for a variety of legitimate reasons, including a misspelled name or a 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. ICE has in the past regarded 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.
From an HR perspective, investigating no-match discrepancies was fraught with difficulties, due in part to the difficult balancing act that employers face when it comes to managing their I-9 compliance. Now, HR has one less worry.
Bruce E. Buchanan is a partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta, where he represents employers in immigration and employment/labor matters and individuals in immigration matters. Bruce received his J.D. in 1982 from Vanderbilt University. He is the co-author of The I-9 and E-Verify Handbook (2d ed. 2017) and writes a blog on employer immigration compliance matters located on Twitter – @buchananvisalaw. Bruce is the Chair of the TBA’s Immigration Law Section and editor of three legal publications, including the TBA’s Labor & Employment newsletter. He may be reached at (615) 345-0266 or bbuchanan@sblimmigration.com.
