Revisiting Social Security’s “no-match” letters

Chuck Schwartau, Regional Extension Educator,
University of Minnesota

Editor’s note: In September, a federal judge halted the Department of Homeland Security’s schedule to send Social Security Administration “no-match” letters to more than 140,000 employers in the U.S. A no-match letter indicates that the Social Security number an employee provides on his or her W-2 form does not match the Social Security Administration’s database. A federal judge will review the restraining order again October 1 and may or may not lift the ban that prohibited the letters from being mailed as originally scheduled in September.

“Just when I get it figured out, they go and change the rules!”
You’ve probably felt that way about things like environmental regulations and insurance. Now you can add employment issues to that list.

If a federal restraining order is lifted and the Department of Homeland Security (DHS) is permitted to send “no-match” letters to thousands of U.S. employers, producers who receive one of the letters will need to obtain and file corrected information for the employee whose information is in question within 90 days. If the issue is not resolved within 90 days of receiving the “no-match” letter, the employer is faced with two options, neither of which may be very attractive:

1. Terminate the employee in question.

2. Face the prospect of prosecution and fines for having constructive knowledge of employing undocumented employees.

As I’ve said before (see pg. 15 of September’s Progressive Dairyman), receipt of a letter does not automatically mean an employee is undocumented and must be released. It only means the records do not match and corrective action must be taken.
There are actions that offer employers “safe-harbor protection” from prosecution and claims of discrimination.

How to get safe-harbor protection
To get safe-harbor protection under the new DHS rule, an employer receiving a Social Security Administration (SSA) “no-match” letter must take these steps:

1. The employer must check his or her records to see if the “no-match” was due to a record-keeping error by the employer. If it was, then the employer must correct the error, inform the SSA of the correct information and verify with the SSA that the corrected name and number match SSA records.

The employer should document that verification and store that documentation with the employee’s Form I-9. The employer must do all of this within 30 days after receiving a “no-match” letter.

2. If he determines the “no-match” was not due to his record-keeping error, the employer must promptly ask the employee to confirm that the name and number in the employer’s records are correct. If the employee says they are incorrect, then the employer must do the things specified in step 1.

If the employee says they are correct, then the employer must promptly ask the employee to resolve the issue with the SSA and advise the employee of the date on which the employer received the “no-match” letter and to resolve the “no-match” within 90 days of that date.

3. If the employer within those 90 days cannot verify with the SSA that the employee’s name and number match SSA records, then the employer and employee must within 93 days after the “no-match” letter receipt date complete a new Form I-9 for the employee without using the suspect number and instead using a document presented by the employee that contains a photograph to establish only identity or both identity and employment authorization. Valid forms of identification include a U.S. passport (unexpired or expired), a U.S. birth certificate, or any of several documents issued to lawful permanent resident aliens or to nonimmigrants with work authorization.

The rule also applies where the DHS notifies an employer of a problem with an employee’s employment authorization documentation. The employer has 30 days to try to resolve the issue with the DHS. If it cannot do so within 90 days after it got the DHS notice, then the employer must re-verify the employee’s identity and work authorization as specified in step 3.

Employers may verify a Social Security number with the SSA by telephoning toll-free (800) 772-6270 weekdays from 7 a.m. to 7 p.m. EST.
Employers can also register to use an online system to verify Social Security numbers at http://www.ssa.gov/employer/ssnvadditional.htm. Regardless of the method used, an employee’s Social Security number must be on file within three days of starting work. Failure to complete this step may result in a violation.

Employers should make a record of the manner, date and time of any such verification, as the SSA may not provide any documentation.

This is probably not the last we will hear of rules for employers and employees. It is anticipated these tighter rules will result in continued court action and perhaps prompt Congress to look at the broader immigration rules.

In the meantime, for your greatest protection, look carefully at the rules and be prepared to follow them to the letter if “no-match” letters are sent.

Further information can be obtained at www.dhs.gov. This site has the full rule online including summaries of the comments received about the rule. Another online resource is http://www.ssa.gov/employer/noMatchNotices.htm. This site gives examples, and it answers many typical questions about the process. PD

—Excerpts from Dairy Star