By Christopher R. Helm, James M. Mei and Richard M. Rawson

Each year, the Social Security Administration (SSA) sends thousands of letters to employers across the country listing the names and Social Security Numbers (SSNs) of employees whose SSNs do not match their names on the earnings records of the SSA. The purpose of the so-called "no-match" letter is to properly credit earnings records for future benefits, not to identify illegal aliens. Here are some suggestions about how to respond to an SSA no-match letter, as well as general advice about compliance with I-9 employment eligibility verification rules.

  • You should not conclude that a listed employee is an illegal alien simply because he or she is listed in a no-match letter. Discrepancies can arise from transcription or typographical errors and name changes. You may violate state or federal law if you take adverse action against an employee based solely on the SSN no-match letter.
  • You should notify each employee listed in a no-match letter and ask him or her to verify his or her SSN, contact SSA to resolve the discrepancy, and notify you of the outcome.
  • If the employee admits that he or she submitted a false social security card in connection with the I-9 employment eligibility form, and if he or she cannot submit valid employment authorization documents as required by form I-9, then you cannot continue to employ such person without being subject to fines and penalties for knowingly continuing to hire an illegal alien. In such case, termination of the employee is appropriate.
  • During the I-9 employment verification process, you may (but are not required to) make copies of any documents submitted by an employee as evidence of identification or employment authorization for future reference. Be consistent and follow the same policy for all employees.
  • You should not ask a new hire to submit extra documents beyond that which are required by form I-9. The new hire is free to choose which of the listed documents to submit.
  • Be sure that the I-9 form is completed within three business days of hire. If the individual's employment authorization is temporary, be sure to verify his or her employment authorization prior to the expiration date of the document submitted at the time of hire.
  • It may be advisable to conduct an internal audit of your company's I-9 files from time to time, rather than waiting until a government audit is requested. Normally you will be given three days notice prior to a government inspection of your I-9 records.

You should consult with your employment or immigration lawyer* if you have any questions about how to respond to an SSN no-match letter or if you have any other questions about the I-9 employment eligibility verification process.

For additional information, go to www.ssa.gov/employer or call 1-800-772-6270 (7am to 7pm, EST, M-F). Also see IRS Pub. 393 "Federal Employment Tax Forms" and SSA Pub. 31-011, "Software Specifications and Edits for Annual Wage Reporting." IRS Pub. 15, Circular E, "Employer's Tax Guide" contains instructions for recording employee's names and SSNs.

This Immigration article is a publication of the Immigration Department of Davis Wright Tremaine LLP. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

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