The Social Security Administration (SSA) Commissioner recently issued a directive to resume sending employers so-called "no-match letters" when an employee's name and Social Security Number from the employer's W-2 Form do not match the SSA's records. The SSA stopped sending no-match letters as a result of the litigation and the ultimate rescission of the Department of Homeland Security's (DHS) controversial 2007 No-Match Rule, which provided employers with a step-by-step process for responding to no-match letters. You can view our previous Alerts on this subject by clicking here and here.
Experienced human resource professionals know that no-match letters put employers between a rock and a hard place. On one hand, the Bureau of Immigration and Custom Enforcement (ICE) takes the position that employers who ignore no-match letters have constructive knowledge of an employee's unlawful immigration status in violation of the Immigration Reform and Control Act's (IRCA). On the other hand, IRCA prohibits employers from discriminating against individuals on the basis of national origin or citizenship, including requiring a particular group of employees to re-verify their immigration status based on the receipt of a no-match letter.
DHS's 2007 No-Match Rule attempted to provide employers with clear guidance on responding to no-match letters and provided employers with a safe harbor from discrimination claims if they complied with the steps outlined by the rule. But that rule never went into effect, and the Obama Administration eventually rescinded it—leaving employers with no clear guidance on how they should respond to no-match letters. Accordingly, employers receiving no-match letters should work with experienced immigration counsel to develop a consistent approach to responding to these letters.
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