Social Security No-Match Letters

August 13th - The Department of Homeland Security (DHS) has announced that it has finalized its rule entitled "Safe Harbor Procedures for Employers Who Receive a No-Match Letter."

The rule is expected to be published in the Federal Register on Monday August 13, 2007, and will become effective thirty days after the publication. The rule sets forth the steps employers should take if they want to avail themselves of the "safe harbor procedures" upon receipt of a no-match letter from the Social Security Administration (SSA) or DHS.

SSA will begin sending this year's no-match letters to approximately 140,000 employers this fall. These letters will correspond to approximately 8 million workers. Although we haven't seen the final letter from SSA, we are informed that it will still contain the strong language warning employers against taking any adverse action against workers. It will also reference the DHS insert, which SSA will send along with the no-match letter. DHS has a Fact Sheet, posted on its website.

Summary of the Rule

In a stark departure from current law, DHS is converting the no-match letter into an immigration enforcement tool by allowing the Immigration and Customs Enforcement (ICE) agency to use receipt of the no-match letter as evidence that the employer has "constructive knowledge" that an employee is unauthorized to work. Employers who follow the steps outlined in the rule would have a "safe harbor" even if the worker is later found to being undocumented. However, DHS makes it clear that "if, in the totality of the circumstances, other independent evidence exists to prove that an employer has constructive knowledge, the employer may still face liability." Also, the "safe harbor" does not apply to a situation where DHS believes the employer had "actual" knowledge it was hiring undocumented workers.

The information disseminated today by DHS follows the proposed rule published last June 14, 2006 with some notable changes, including an increase in the number of days employers and employees have to correct the no-match.. The final rule sets forth the "reasonable steps an employer should take when this occurs." These are:

Within 30 days of receipt of the no-match letter:

• An employer should promptly check its records to ensure that the discrepancy or "no-match" is not a result from a typographical or clerical error.
• If there is an error, the employer should correct the information with the appropriate agency and should verify the corrected data with the relevant agency (SSA or DHS).
• If the discrepancy cannot be resolved, the employer should "promptly" request the employee to confirm the name and social security account number in the employer's records.
• If the worker corrects the information, the employer must take the proper steps to notify the appropriate agency and to verify the corrected data with the relevant agency (SSA or DHS).
• If the worker states the information is correct, the reasonable employer would advise the employee to visit the relevant agency to correct the information.
• DHS considers that a no-match has been resolved only when the employer verifies with DHS or SSA that the information corresponds with the proper agency's records. For example, if a worker provides a new Social Security number (SSN), the employer would have to verify with SSA that it is a valid SSN.

Within 90 days of receipt of the no-match letter:

• If the discrepancy is not resolved within 90 days of receipt of the no-match letter, the employer should re-verify the individual's work authorization by completing a new I-9 Form for the employee without using the documents that were the subject of the "no-match" letter. The employer has 3 additional days (or within 93 days of receipt of the no-match letter) to complete the new I-9.
• An employee cannot use a document containing the SSN or alien number that is the subject of the no-match letter to establish work authorization or identity or both. Additionally, all documents used to prove identity or both identity and employment authorization must contain a photograph.
• If the employee is unable to resolve the no-match, the employer may choose to terminate the employee or run the risk that DHS will find that the employer had constructive knowledge of employing an unauthorized worker in the U.S.

DHS has clarified that if the employer does not obtain actual or constructive knowledge during the "safe harbor" procedure, the employer may continue to employ the individual until all of the steps are completed. It continues to say that there is nothing prohibiting an employer from terminating the employee beforehand based on its own internal personnel policies. This seems to be in contradiction of the SSA's warnings against adverse employment actions.

If an employer follows the "safe harbor" procedures in good faith, the employer can be "assured" that it will not be subject to employer sanctions. DHS maintains, however, that the receipt of a "no-match" letter does not, in and of itself, indicate that a worker is unauthorized, but states that an employer's failure to follow the "reasonable steps" outlined above could subject the employer to possible penalties.

DHS reminds employers that these procedures are to be applied uniformly to all of their employees having unresolved no-matches.

The Implementation of the DHS No-Match Rule Will Impact Many Workers

The 2007 SSA no-match letters will be sent out in the coming weeks. Advocates should be prepared for many more workers to be fired from their jobs based on the employer's receipt of a no-match letter in over the next months and year. This will include documented workers who end up with a discrepancy because of the inaccuracies in the government's database, and undocumented workers who may not be able to correct their records. Unfortunately, the timing is such that many of these firings will take place right before the December holidays. It will be important for advocates and communities to be prepared.

Important Information for Advocates About the No-Match Rule

It is important for worker advocates to know that while the DHS regulation suggests that employers take certain steps upon receipt of a no-match letter - or risk a finding that the employer had constructive knowledge that a worker was unauthorized to work - it does not mandate that SSA share information with DHS. While SSA will continue to send out no-match letters to employers, SSA will not provide DHS with the names of employers that the SSA sent no-match letters to and the no-match letters alone will not trigger immigration worksite enforcement actions. However, if DHS is conducting an I-9 audit, it could use the fact the employer received no-match letters to try to prove the employer had actual or constructive knowledge that it was hiring undocumented workers.

DHS also clarified that the final rule applies only to written notice that is issued directly to the employer from the SSA or DHS. It does not apply to information employers receive through sources other than no-match letters. This includes a discrepancy the employer may learn about in using the Social Security Number Verification Service (SSNVS), for example, which is a voluntary program employers can use to verify SSNs.

What You Can Do Right Now:

It is important that advocates:

• Educate workers about the final DHS rule on no-match letters.
• Explain the different types of errors that can commonly result in a discrepancy.

• Educate workers about their labor and civil rights such as the right to be free from discrimination, their right to be free of retaliation for exercising their rights as workers, their right to remain silent, etc.
• Remind workers to request a copy of the no-match letter in the event that their employer advises them of a discrepancy with his or her SSN to ensure that the employer is indeed responding to a notice from SSA or DHS.
• Be prepared for employer abuse and misuse of the DHS rule and the SSA no-match letters. It will be very important for workers to document who the employer has notified of a discrepancy: how many days each person is getting to correct the information? Are certain workers being singled out based on race, national origin, language skills, or for exercising their labor rights?
• If represented by a union - the worker should notify their Union representative immediately as they may have additional rights under their union contract.
• If the workers are not part of a union, get the local workers' center or other immigrant rights organization in the area involved.
• Find out if there is anything else going on at the worksite - i.e. organizing campaign, litigation, etc? to see if the employer is retaliating against workers.
• Conduct a thorough investigation of the working conditions and consider filing legal claims for those employment/labor violations.

We will provide a more detailed summary update as soon as possible. Click here to read the detailed DHS description of the final rule and response to comments.