No-Match Letters are Back!
Immigration Law Alert 04/14/11 Grant Sovern, Eric D. Ledbetter, Lisa D. Duran, Otto W. Immel
Effective immediately, the Social Security Administration ("SSA") has resumed its policy of sending so-called "no-match" letters to employers when a discrepancy exists between an employee's reported Social Security withholding information and the SSA's database. The practice had been on hold since 2007 but will resume for tax year 2010.
While the SSA's goal is simply to ensure that Social Security withholdings are assigned to the correct employees' accounts, the letters have taken on additional legal significance because the Immigration & Customs Enforcement agency ("ICE") views them as potential evidence of an employer's knowing employment of unauthorized workers. While employers are not permitted to take adverse action against employees simply on the basis of a no-match letter, they are strongly encouraged to take steps to work with the employee to resolve the discrepancy.
Quick Summary: What You Need to Know
- Unlike previous versions, the new letters will only list one employee per no-match letter.
- To be in compliance, employers should take steps to resolve the discrepancy for each letter received. Employers should first check their own records to verify the name and Social Security information and then have the employee do the same. If that does not resolve the discrepancy, the employer should instruct the employee to contact SSA and report back within a reasonable period. Although the regulations do not define a "reasonable period," related guidance from the SSA, the Department of Justice and the Immigration Service suggest that, depending on the circumstances, an employee could require up to 2-4 months to resolve the discrepancy. Employers are advised to document their actions carefully and to follow up periodically with employees to check their progress with SSA.
- There can be many reasons for a discrepancy, including typographical errors, name changes and incomplete information. A no-match letter is never a basis, by itself, to take adverse action against the employee. Doing so could result in a charge of immigration-related discrimination.
- The new letters will no longer include language cautioning employers that failure to act upon the letter could be viewed as "constructive knowledge" of the worker's lack of work authorization. However, despite this omission by SSA, ICE continues to view no-match letters as a potential source of evidence against noncompliant employers. ICE routinely asks for no-match letters and related documentation during I-9 audits and, where appropriate, evaluates the adequacy of employers' responses when assessing I-9 violations fees and deciding whether to bring further charges.
- While ICE is responsible for enforcing I-9 compliance, the Department of Justice's Office of Special Counsel ("OSC") enforces the immigration-related nondiscrimination regulations. The OSC recently published a FAQ on no-match letters available here: http://www.justice.gov/crt/about/osc/.
Employers are advised to consult with their employment counsel before taking any adverse actions with respect to a no-match letter, including layoffs, suspensions, firings, reduced assignments or pay, or other actions that could be construed as discriminatory.
For additional information, please contact one of the following attorneys who can assist with immigration issues: Grant Sovern at (608) 283-2668 / [email protected], Eric Ledbetter at (312) 715-5018 / [email protected], Lisa Duran at (602) 229-5225 / [email protected], Otto Immel at (239) 659-5041 / [email protected] or your Quarles & Brady attorney.