Most companies are familiar with the "no-match" letters issued to employers by the Social Security Administration (SSA) or the Department of Homeland Security (DHS) when a social security number does not match the employee name or other information provided by the employer. DHS's final rule, issued on August 10, 2007, to take effect September 9, 2007, changes employers' obligations upon receiving such letters.
Previously, employer action upon receipt of a no-match letter generally was limited to informing employees at issue of the receipt of the letter to avoid allegations of national origin discrimination. In contrast, DHS, and other federal enforcement authorities, including the United States Attorney's Office for the District of Massachusetts, had taken the position that receipt of the letters could constitute evidence of knowledge of a violation of immigration law.
Under the new rule, to avoid an allegation that there was constructive knowledge that an employee provided a false social security number, employers who receive no-match letters must, within 30 days of receipt of the letter, determine whether the discrepancy results from a typographical, transcription or similar clerical error in its records or communications to the SSA or DHS, and if there is such an error, inform the relevant agency and verify that the name corresponds to the social security number. If the employee contends that the employer's information is incorrect, the employer should correct the information and then verify the corrected information with the relevant agency.
If the employee contends that the employer's information is correct, the employer should request that the employee resolve the discrepancy with the relevant agency. The employee has 90 days to resolve the discrepancy. If the employee is unable to resolve the discrepancy within 90 days, the employer must complete a new I-9 form for the employee as if the employee was newly hired except that no documents containing a social security number or alien number that is the subject of a no-match letter may be used as proof of employment eligibility and no documents without a photograph may be used to establish identity.
If the employer cannot re-verify employment eligibility at the end of this process, the employer must take action to terminate the employee or risk a finding that the employer had constructive knowledge that the employee was an unauthorized alien, and by continuing to employ the individual, violated the Immigration and Naturalization Act.
This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.