Proposed Regulations for Social Security "No Match" Letters and Electronic Storage of I-9's
The Department of Homeland Security (DHS) has issued proposed regulations which will provide guidance to employers when they receive a "no match" letter from either the DHS or the Social Security Administration (SSA). The DHS sends out such a letter to an employer when the immigration-status or employment-authorization documentation presented or referenced by the employee is inconsistent with its records. The SSA sends out a "no match" letter when the combination of name and social security number submitted for an employee does not match.
Here's how the new regulation would work. Upon receipt of such a letter, an employer would be required to take "reasonable steps" or the DHS could take the position that the employer has "constructive knowledge" that the individual's status was in violation of immigration law. These reasonable steps would include:
- Within 14 days, correct and clerical errors in an employee's records or other communications with the government (such as transcription errors); Request that the employer confirm the correctness of the previously provided information and instruct him/her to resolve the issue directly with the SSA; Verify with either the SSA or DHS that the matter has been resolved by providing relevant documentation.
- After 60 days, if the employer still cannot verify the legal status of the individual, it must then, within 3 days, attempt to verify the employee’s identity/work authorization. This might include having the employee complete a new I-9 form. However, if relying on the I-9:
- the employer cannot rely upon a document which contains the Social Security number or alien number identified in the no-match notice
- the employer cannot rely upon a receipt of an application for a replacement for the document in question.
- the document relied upon by the employer must contain a photograph of the employee in order to establish identity or identity and employment authorization
- If, at this point, the no-match issue cannot be resolved or the work authorization verified, the employer would be required to terminate the employment of the individual or face government action.
- Following these procedures is considered a Safe Harbor under the regulations. An employer who follows these would be deemed to have acted in "good faith." In addition, failure to respond to a no-match letter in a timely and appropriate manner would now be considered evidence of “constructive knowledge” that an employee is an unauthorized alien.
The comment period for these proposed regulations is August 14th. In addition, these proposed regulations were announced with another proposed regulation on electronic storage of I-9 forms. For more information, follow these links: