Department of Homeland Security Sets Forth Employer obligations After Receiving a “No-Match” Letter
 
September 4, 2007
 
Kelli A. Fitzgerald- Chicago

On August 15, 2007, the Department of Homeland Security (DHS) published its final regulation setting forth employers’ responsibilities after receiving a “no-match” letter from the Social Security Administration (SSA) or a Notice of Suspect Documents from the DHS. The new regulation will take effect September 14, 2007. The regulation describes “safe-harbor” procedures that an employer should follow to avoid a finding that it has employed an unauthorized worker in violation of the Immigration and Nationality Act (INA).

Background

When the SSA discovers that the name and social security number provided by an employer do not match the SSA’s records for that name and number, the SSA may send a letter informing the employer about the discrepancy. This is referred to as a “no-match” letter. Similarly, the DHS may send written notification called a “Notice of Suspect Documents” stating that the employment authorization document provided by the employee to complete Form I-9 does not match the DHS’s records for that individual.

The INA prohibits an employer from knowingly continuing to employ an alien who lacks the proper authorization to work in the United States. 8 USCS § 1324. “Knowing” can include both actual knowledge or constructive knowledge that the employee lacks authorization to work. Before August 15, 2007, the Social Security Administration had maintained that “no-match” letters were meant to be an informational tool for the employer, not a means to enforce the INA. Under the new DHS regulations, however, receipt of a no-match letter or Notice of Suspect Documents can amount to constructive knowledge that you are employing an alien who lacks the proper work authorization, and can result in penalties under the INA. Thus, the regulations charge the employer with the duty to inquire further after receiving a no-match letter or Notice of Suspect Documents.

Safe-Harbor Procedures

The regulations set forth safe-harbor procedures that an employer can follow to protect itself from liability. If the employer follows the procedure, the no-match letter or Notice of Suspect Documents will not be used to establish that the employer had constructive knowledge that it is employing an unauthorized alien.

Steps Employers Should Take After Receiving a No-Match Letter From the SSA

Within 30 days after receiving a no-match letter, the employer must determine if the problem is due to a clerical error in the employer’s records or in the communication to the SSA. If there is such an error the employer must correct its own records and notify the SSA of the corrected information (in accordance with the instructions in the no-match letter). The employer must also verify that the corrected information now matches SSA records. The employer must record the manner, date and time of the verification and keep this record with the employee’s I-9 Form. The employer may then update the employee’s I-9 Form or complete a new I-9 (but must retain the original). The employer should not perform a new I-9 verification.

If no such error is found, the employer must promptly ask the employee to confirm that the employer’s records are correct. If the employee finds a clerical error, the employer must notify the SSA in the same manner described above. But if the employee is unable to identify any clerical error, the employer must promptly advise the employee of the no-match letter and request that the employee resolve the discrepancy with the SSA within 90 days of the employer’s receipt of the letter.

If the employee is unable to resolve the discrepancy within 90 days, the employer must request that the employee complete a new I-9 Form within three days (93 total days from the receipt of the letter) to re-verify the worker’s employment eligibility and identity.

Steps Employers Should Take After Receiving a Written Notice from the DHS

Within 30 days of receiving a Notice of Suspect Documents from the DHS the employer must contact the DHS and at tempt to resolve the question raised in the notice.

If the employer is unable to resolve the issue with the DHS within 90 days after receiving the written notice from the DHS, the employer must request that the employee complete a new I-9 Form within three days (93 total days from the receipt of the DHS’s written notice) to re-verify the worker’s employment eligibility and identity.

Completing a New I-9 Form If the Discrepancy Cannot Be Resolved

After receipt of either a no-match letter from the SSA or a Notice of Suspect Documents from the DHS, an employer has three days to complete a new I-9 Form if the discrepancy has not been resolved within 90 days from receipt of the notice. In completing the new I-9 Form the employer shall use the same procedures used at the time of hire with the following exceptions: (1) the employee must complete Section 1 (Employee Information and Verification) and the employer must complete Section 2 (Employer Review and Verification); (2) the employer cannot accept the document referenced in the DHS notification, any document containing the social security number that is the subject of the SSA no-match letter, any document containing a disputed alien number referenced in either written notice, or any receipt for an application for a replacement of such document (3) the employee must present a document that contains a photograph to establish identity or both identity and authorization for employment; and (4) the new I-9 Form must be retained with the original I-9 Form.

Terminating the Employee

The employer may terminate the affected employee’s employment only if the employer cannot verify the employee’s work eligibility through completion of a new I-9 Form. If the employer decides not to terminate employment at that point, it assumes the risk of being found to have constructive knowledge that it is employing an unauthorized alien.

Also, the new regulation and its safe harbor procedures will not protect an employer who has actual knowledge that an employee is not authorized to work. An employer should terminate the employee in that instance, or it will be found to have knowingly employed an unauthorized worker.

Conclusion

If an employer follows the safe-harbor procedures outlined in the new DHS regulations it can protect itself from being deemed to have constructive knowledge that it is employing an unauthorized alien and the penalties that would follow. Employers should follow these procedures for every employee without regard to the employees race, ethnicity, or national origin. This will protect the employer from penalties under the INA and from being found to have acted discriminatorily pursuant to civil rights laws.

For more information, email Kelli A. Fitzgerald at kelli.fitzgerald@hklaw.com or call toll free, 1-888-688-8500.