The Department of Homeland Security (DHS) has issued new regulations providing guidance to employers who receive a “no match” letter from the Social Security Administration (SSA) indicating that the employer has submitted a W-2 form in which the combination of name and social security number does not match SSA records.
The Department of Homeland Security (DHS) has issued new regulations providing guidance to employers who receive a “no match” letter from the Social Security Administration (SSA) indicating that the employer has submitted a W-2 form in which the combination of name and social security number does not match SSA records. The regulations also address the situation in which the employer receives a letter from DHS called a “Notice of Suspect Documents,” indicating that DHS has been unable to confirm that an immigration status document or employment authorization document used by an employee in completing an I-9 form was assigned to that person.
The regulations acknowledge that there can be many reasons the employer’s information and the government’s records do not match, including clerical error and name changes. However, one reason may be that the employee submitting the information to the employer is not authorized to work in the United States and is using a false Social Security number (SSN) or a SSN assigned to someone else.
Most employers are aware that federal law prohibits an employer from continuing to employ an individual knowing that person is not authorized to work in the United States. The term “knowing” includes both actual and constructive knowledge. Constructive knowledge is “knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.” The new regulations add two examples of situations that would put an employer on notice that an employee could be an unauthorized alien: 1) receipt of a “no match” letter from the Social Security Administration; and 2) receipt of a Notice of Suspect Documents from the Department of Homeland Security.
The new regulations also contain a “safe harbor” provision that sets out procedures an employer can follow after receiving a no match letter or Notice of Suspect Documents to ensure that DHS will not use such a letter as a basis to conclude that the employer had constructive knowledge that the employee was not authorized to work in the United States. The new safe harbor provision provides a clear method for employers to exercise reasonable care in addressing no match letters. Employers who respond to the receipt of the specified SSA or DHS letters by following the steps outlined below will be effectively immunized from a DHS finding that the employer had constructive knowledge based on those documents.
The new regulations are similar to the proposed rule, which also provided for a safe harbor provision. However, the new regulations give the employer a longer period of time to determine whether the no match is a result of a typographical or clerical error (30 days instead of 14) and to resolve the no match (90 days instead of 60).
Safe Harbor Provision
The new regulations provide that an employer will not be deemed to have had constructive knowledge of an individual’s unauthorized status if the employer follows the steps below in response to a no match letter or Notice of Suspect Documents.
Within 30 days of receiving a no match letter from the SSA:
The employer must check its records to determine whether the discrepancy is due to a typographical or clerical error. If so, the employer must: correct the information and inform the SSA of the correct information; and verify with the SSA that the employee’s name and SSN, as corrected, match the agency’s records.
Additionally the employer should make a record of the date, time and manner of this verification and store this information with the employee’s I-9 form. The employer should not perform new I-9 verification, although it may update the employee’s I-9 form or complete a new I-9 form with the corrected information.
If the employer determines that the discrepancy is not due to a typographical or clerical error in its own records, it must promptly request that the employee confirm that the name and SSN in the employer’s records are correct. If the employee states that the employer’s records are incorrect, the employer must correct, inform, verify and make a record, as set forth above.
If the employee states that the employer’s records are correct, the employer must promptly request that the employee resolve the discrepancy with the SSA. The discrepancy must be resolved within 90 days of the date the employer received the written notice from the SSA.
Within 90 Days of Receiving No Match Letter:
If the employer is unable to verify the employee’s name and SSN within 90 days of receiving written notice from the SSA, the employer has three days in which to re-verify the employee’s employment authorization. To re-verify the employee’s employment authorization, the employer must complete a new I-9 form for the employee using the same procedures as if the employee were newly hired. However, the employer cannot accept any document referenced in the no match letter or any document that contains a disputed SSN or alien number or a receipt for an application for replacement of such a document to establish work authorization or identity. The employee must present a document that contains a photograph to establish identity or both identity and work authorization. The employer must retain the new I-9 form with the prior I-9 forms in accordance with federal laws and regulations.
The regulations provide for similar procedures for a safe harbor after receiving a Notice of Suspect Document from DHS.
Employers who receive a Social Security no match letter and who follow the safe harbor procedures set forth in these regulations will be immunized from a finding of constructive knowledge based on the receipt of a no match letter if the individual is ultimately found to be unauthorized. However, following the safe harbor provision would not preclude DHS from finding that an employer had actual knowledge that an employee is not authorized to work in the U.S. It also does not preclude DHS from finding that the employer had constructive knowledge of an employee’s unauthorized status based on other factors. However, the comments to the new regulations note that such a determination is unlikely.
The new regulations go into effect September 14, 2007.
Employers’ Bottom Line:
The new regulations provide much needed guidance for employers who receive no match letters or a Notice of Suspect Documents. While employers are not required to follow the procedures in the regulations, it would be wise to do so since the procedures provide a clear method for exercising reasonable care in response to a no match letter.
Additionally, employers should make sure they have documented any action taken to ensure an individual is authorized to work in the United States, such as using the SSA’s Social Security Number Verification System, available at http://www.ssa.gov/employer/ssnv.htm, USCIS’ Systemic Alien Verification for Entitlements (SAVE) Program and EEV, http://www.vis-dhs.com/EmployerRegistration, or ICE’s IMAGE program, http://www.ice.gov/partners/opaimage/index.htm. DHS will consider such action in determining whether the employer has exercised reasonable care to ensure it is not employing unauthorized aliens, even if the employer has not followed the safe harbor provisions.
If you have any questions regarding the new regulations or any other employment related immigration issue, please contact Geetha Nadiminti, or any member of Ford & Harrison’s Business Immigration practice group.