New Regulations Specify Procedure For Responding To "No Match" Letters

8/24/07

The Social Security Administration (SSA) routinely sends "Employer Correction Request Letters" to employers when employee names and social security numbers reported in their W-2 forms do not match the corresponding information already on file with the SSA. Similarly, the U.S. Immigration and Customs Enforcement Office (ICE) sends employers a "Notice of Suspect Documents" in cases where it is unable to verify employees' purported citizenship status or employment eligibility from the documents they submit in support of their Employment Eligibility Verification forms (I-9 Forms). Both letters are commonly referred to as "no-match" letters and are intended to notify the employer of a possible clerical error, an employee name change or, potentially, that the employee has submitted false information.

 

On August 10, 2007, the Department of Homeland Security issued a new regulation setting forth the steps an employer is expected to take in response to a no-match letter. Employers who fail to promptly follow these procedures after receiving a no-match letter may be regarded as having "constructive knowledge" that the named employee is not authorized to work in the United States and could face substantial penalties under the Immigration and Naturalization Act. Conversely, an employer who terminates the employment of an employee based upon the receipt of a no-match letter without following these procedures to rule out innocent explanations for the discrepancy may face liability under federal and state anti-discrimination laws.

 

The Homeland Security regulation provides that an employer may be deemed to have constructive knowledge that an employee is not authorized to work in the United States unless it takes the following steps upon receipt of a no-match letter:

 

(1) promptly (within 30 days after receipt of the no-match letter) checks its records to determine whether the mismatch arose from a clerical error that occurred in its documentation or communications with the SSA or ICE. The employer should make a record of the date, time and manner it used to verify its records or obtain the correct information, should store that record with the employee's Form I-9 and must inform the agency that issued the letter of its verification efforts and any corrected information;

 

(2) if there was no clerical error, the employer must promptly request that the employee confirm the employer's records are accurate. If the employee indicates that the records are inaccurate, the employer must correct the records, inform the agency that issued the letter of the corrections and keep a record of its correction and verification efforts. If the employee indicates that the records are accurate, the employer must advise the employee of the date that it received the no-match letter and instruct the employee to take whatever actions are necessary to correct the discrepancy within 90 days;

 

(3) if the discrepancy is not resolved and the employee cannot be verified as an authorized worker within 90 days after receiving the no-match letter, the employer must complete a new Form I-9 for the employee as if the employee was newly hired on or before the 93rd day after receipt of the no-match letter. The employee must complete the "Employee Information and Verification" portion (Section 1) of the I-9 Form and the employer must complete the "Employer Review and Verification" portion (Section 2).

 

If the discrepancy is still not resolved and the employee cannot be verified as an authorized worker within 93 days of receiving the no-match letter, failure to terminate the employee exposes the employer to a potential determination that it violated the INA by virtue of having constructive knowledge that the employee was unauthorized to work.

 

The new regulation becomes effective on September 14, 2007. Accordingly, employers should familiarize themselves with the new procedures and be prepared to implement them when they become effective, if not before.