Social Security Administration Resumes Sending No-Match Letters
On April 6, 2011, the Social Security Administration (SSA) resumed sending "Decentralized Correspondence" letters, commonly referred to as "no-match" letters, to individuals and employers notifying them of discrepancies between information reported on form W-2 and SSA records. SSA stopped sending no-match letters during tax years 2007-2009 due to litigation over controversial regulations that were eventually rescinded.
Immigration law prohibits employers from “knowingly” employing unauthorized workers. Regulations and case law issued prior to 2007 interpret the term “knowingly” as including “constructive knowledge” and provided examples of situations that may establish “constructive knowledge.” The challenge for employers is that receipt of a no-match letter may give the employer “constructive knowledge” that there may be an issue with a particular worker’s authorization to work in the United States. The rescinded “No-Match Rule,” which was issued as a final rule in August 2007 and supplemented in October 2008, established a “safe-harbor” process for employers to follow when receiving a no-match letter. This allowed employers to avoid a finding that its receipt of such a letter gave it “constructive knowledge” of a worker’s ineligibility to work in the United States. However, the rule was never implemented.
With the re-introduction of no-match letters, there are no clear steps identified to protect employers who receive them, so employers are encouraged to take proactive steps and implement the following actions:
- Establish a chain-of-command and train HR and other hiring personnel in how to conduct the I-9 process, how to respond to no-match letters, and how to deal with a jobsite visit from the Immigration and Customs Enforcement division of DHS.
- Conduct an internal audit of I-9 forms and consider hiring an outside expert, such as an immigration attorney, to audit a random sample and correct any errors.
- Register with the Social Security Number Verification System (SSNVS) and begin using it for new hires. If your firm has a significant history of mismatches, then consider using SSNVS to verify the social security numbers (SSNs) of your entire workforce.
- Include a policy in your employee handbook regarding your company’s commitment to employing only workers who are authorized to work in the U.S. and whose SSNs and names match government records. Apply and follow the policy on a uniform, nondiscriminatory basis.
- Adopt clauses in contracts with subcontractors, staffing companies, and other service providers furnishing workers on your jobsites by which the latter (a) certify that they are in compliance with immigration laws, (b) promise to conduct periodic self-audits of I-9s, and (c) agree to indemnify you if you are found liable for employing an unauthorized worker that they have provided.
- Establish a recruitment plan in preparation for the possible need to replace workers who abandon their jobs or are terminated during the process.
More information about Employment Eligibility Verification is available on the U.S. Citizenship and Immigration Services website at www.uscis.gov and in the Labor and HR Topical Resources section of the AGC website.
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