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Proposed Regulation Addresses SSA No-Match Letters

Volume 5, Issue 15
November 17, 2006

The Bureau of Immigration and Customs Enforcement ("ICE") of the Department of Homeland Security has announced a proposal to amend the regulations relating to the hiring or continued employment of unauthorized aliens. The proposed regulation is intended to provide guidance to employers who receive "no-match" letters from the Social Security Administration ("SSA") or the ICE and sets forth "safe-harbor" procedures employers can follow upon receipt of a no-match letter which will help to protect them from liability.

Employers receive no-match letters from the SSA when the employer's earning reports contain employee names and social security numbers that do not match SSA records. An employer may receive a similar letter from the ICE if an audit of its I-9 records results in discrepancies.

It is unlawful for an employer to knowingly hire an alien who is unauthorized to be employed in the United States, or to continue to employ an alien with the knowledge that his employment is unauthorized. An employer who receives information that an employee's documentation is suspect and who fails to make inquiries or take corrective action may be found to have constructive knowledge of the employee's unauthorized status. The proposed regulation sets forth steps an employer can take upon receipt of no-match letters which will shield it from such a finding of constructive knowledge.

Generally, the proposed safe harbor procedures are follows:

  • After receiving a no-match letter, the employer must check its records to see if the discrepancy is a typographical or clerical error. If it is, the employer should, within 14 days, correct the error and verify with the relevant agency that the discrepancy has been resolved.

  • If the discrepancy is not typographical in nature, the employer, within 14 days of the no-match letter, is to contact the employee to determine whether its records are correct. If the employer's records are incorrect, the employer should correct them. If, according to the employee, the records are correct, the employer should ask the employee to personally pursue the matter with the relevant agency.

  • If the discrepancy is not resolved within 60 days, the employee's identity and work authorization must be re-verified by completing a new I-9 Form. If the re-verification procedure is completed and the employee is verified, the employer will not have constructive knowledge of an employee's unauthorized status even if that employee is in fact an alien.

  • If the employee's identity and work authorization cannot be verified during the re-verification procedure, however, the employer must choose between terminating the employee and risking a finding that it had constructive knowledge that the employee was an illegal alien.

While the proposed regulation will undoubtedly assist employers in this difficult area, it is only preliminary. If enacted, the regulation and its safe harbor procedures may be significantly different than the proposal discussed above. As such, it should not be presently relied upon as a step-by-step procedure employers can follow to guarantee protection from liability. However, inasmuch as employers have an obligation under existing law to take reasonable steps to ensure that its employees are authorized to work in the United States, the steps set forth above can serve as useful guidelines when addressing no-match letters. Before deciding to discharge employees who are unable to clarify discrepancies, however, we strongly recommend that employers consult with counsel as to the current state of the law on this issue.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.