SOCIAL SECURITY (SSN) "NO-MATCH LETTERS"
||A Social Security no-match letter is a notice sent by the Social Security Administration (SSA) to employers and employees to inform them that the employee name or Social Security number listed on an employee's W-2 does not match the SSA records.
The no-match letter is not a notice that the employer or employee has done anything wrong. SSA mismatches may have many root causes, including failure to inform the SSA that a name change has occurred, typographical errors, an error within the SSA database, and individuals who present false social security numbers or use another person's social security number when completing hiring paperwork.
Under the new regulations, employers may be held liable for criminal and civil penalties if they ignore no-match problems by failing to take the specified steps outlined in the letter. Employers who fail to comply with the new rule could be deemed as knowingly hiring an illegal worker and could face fines of up to $10,000 per worker and incident.
It is important to note that SSA no-match letters have nothing to do with ICE or any other immigration enforcement agency. The SSA has clearly stated that a no-match letter is not a basis, in itself, for [employers] to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual…and makes no statement about the employee's immigration status. Still the letters have often been misinterpreted by employers who mistakenly think that the no-match letter is a notice that employees listed in the letters are non-citizens who are not authorized to work.
I-9 re-verification or termination based solely on a no-match letter could violate anti-discrimination law. At the same time the ICE have stated that an employer's failure to adequately follow-up on no-match letters could constitute evidence of or contribute to an employer's constructive knowledge of an employee's unauthorized status. There are some simple steps employers can take when they receive a no-match letter that will fulfill their obligations under the law, allow them to retain their employees, avoid any potential discrimination, and avoid trouble from the SSA, IRS, or immigration authorities. The employer must take the certain steps under the safe-harbor procedures of the new regulations.
Employers who continue to receive no-match letters still face the predicament as to what their obligations are under the law upon receipt of a no-match letter. The confusion and uncertainty are a result of mixed messages from federal agencies as to what actions are required by employers when they receive a no match letter.
The SSA has clearly stated that a no-match letter is not a basis, in itself, for [employers] to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual…and makes no statement about the employee's immigration status. In fact, I-9 re-verification or termination based solely on a no-match letter could violate anti-discrimination law. At the same time the Immigration and Custom Enforcement (ICE) have stated that an employer's failure to adequately follow-up on no-match letters could constitute evidence of or contribute to an employer's constructive knowledge of an employee's unauthorized status.
ACTIONS TO TAKE IN RESPONSE TO AN SSA NO-MATCH LETTER
- Do Not Jump To Conclusions: Do not panic or terminate any employees. An employer may terminate an employee for employment eligibility violations only if the employer has actual or constructive knowledge that an employee is unauthorized to work in the United States. A no match letter alone does not constitute actual or constructive knowledge.
- Investigate: Do not ignore the no match letter. If an employer were to simply ignore a no match letter, ICE could certainly use this against an employer if ICE were to later learn that the employer employed an unauthorized worker. Check the employer's records to ensure that the employer did not make a typographic error in reporting the employee's SSN to the SSA. If there is no error, share the no match letter with each employee listed on the letter and advise the employee to check to be sure that the correct name and SSN has been submitted to the SSA. Do not require the employee to produce his or her social security card or any other specific documentation, as this could be considered document abuse under employment eligibility verification laws.
Give the employee a reasonable amount of time to investigate and/or correct any errors. If there was an error, in addition to submitting the correct information to the SSA, the employer should also correct the employee's Form I-9. As with any employment matter, be sure to treat all employees listed on the no match letter similarly without regard to the employee's national origin, race or citizenship status.
- Employee Admits to False SSN: If, upon inquiry, the employee admits that he or she is unauthorized to work in the United States, the employer must immediately terminate the employee's employment.
- Employee Verifies That the Information Given is Correct: If an employee verifies that the employer has the correct name and SSN, ask the employee if he or she can provide any other reason for the no match letter. If no explanation is given, the employer may report back to the SSA that the company has re-verified that the information submitted to the SSA is correct and that neither the employer nor the employee can explain the discrepancy. Ask the SSA to contact the company if any additional employer action is required.
- Employee Verifies That the Information Given is Correct But Employer Learns Additional Information: If during investigation, the employer learns additional information which gives the employer actual or constructive knowledge that the employee is unauthorized to work in the United States, the employer must terminate the employee's employment. Additional information may come in the form of tips from co-workers, an employee admission, job abandonment, etc. If, after further investigation, and under the totality of the circumstances, the employer has actual or constructive knowledge of an unauthorized worker, the employer must terminate the employee's employment. Please note that absent other evidence, a co-worker's tip in and of itself is an insufficient basis for termination, or even re-verification of an I-9. Because the determination of whether actual or constructive knowledge exists is highly fact-specific, employers should contact legal counsel before taking any adverse action against an employee.
- Reporting Back to the SSA: It is not required to report back to the SSA after receiving a no match letter. An employer may, at its option, do so and state one or more of the following with regard to each employee: (1) he/she is no longer employed by the company as a result of job abandonment, voluntarily resignation or involuntary termination unrelated to the no match letter; (2) it appears there was an error in the company's reporting of the correct name and SSN or; (3) the company has verified that it reported the correct name and SSN to the SSA, and the employee and the company are unable to explain the discrepancy.
- Liability to IRS: Although the employer has no obligation under the Social Security Act to respond to SSA or to take an action, and the SSA has no enforcement authority to act against an employer who fails to respond, the IRS can penalize an employer for failing to report accurate information.
- Liability to ICE: The SSA is required by law to provide the IRS with information regarding mismatches but it does not routinely share mismatch information with other agencies, such as ICE. It does provide information to ICE, however, regarding earnings reported on social security numbers assigned for non- work purposes and other specific information relevant to ICE investigations.
Immigration Compliance Group provides assistance in:
- Developing best practices and safe harbors while awaiting the Final ICE Rule;
- Dealing with current enforcement trends;
- Providing strategic advice on whether to retain or terminate employees.
HOW Immigration Compliance Group CAN HELP YOU
Immigration Compliance Group works proactively with its clients to provide comprehensive assistance in developing and maintaining best practices necessary to assure compliance with USCIS, ICE, SSA and DOL regulations.
Employer compliance is becoming more complex and enforcement (investigations and audits) is increasing. In order to effectively deal with these issues and avoid the very severe consequences for non-compliance, employers must take the time to develop a strategy and be prepared in advance with an Immigration Compliance Program.
Immigration Compliance Group will customize such a program for you and will provide onsite or telephonic training, consulting, and document auditing in all of the areas mentioned above, as well as provide ongoing compliance updates. For more information on our services, please contact us at email@example.com