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Be Aware- SSA “No-Match” Letters Are Back

April 27, 2011

With the passage of the Immigration Reform and Control Act of 1986 (“IRCA”) a new era in employer/employee relations began that made unlawful the willful or knowing hiring of illegal immigrants. This spawned the eligibility verification process that all employers are required to go through today. Specifically, IRCA requires employers to verify the work eligibility of every employee through the completion of an I-9 form for each new hire. In essence, the employer is verifying that the eligibility documents provided by employees were physically examined and that the employees appear to be work eligible. Employers are not expected to be document experts, but rather are held to a reasonableness standard. If documents appear to be reasonably genuine on their face and related to the person presenting the documents, the employer has met its obligations under IRCA. However, the information provided by employees does not always match the Social Security Administration’s (“SSA”) database.

For many years, the SSA sent “no-match” letters to employers when the information it received didn’t match its records. This situation presented problems for employers. Under IRCA, an employer could be penalized for employing an illegal immigrant. However, the employer could also be liable for discriminating against an employee in a protected class if his/her documents were over-scrutinized. In 2007 the Department of Homeland Security adopted specific regulations instructing employers on how to respond to these “no-match” letters. The regulations, however, were ultimately blocked by the Court (and ultimately rescinded) and the SSA stopped sending the “no-match” letters shortly thereafter. The break is over.

The SSA has started sending “no-match” letters again. Employers are not required to respond. However, employers should strictly follow the instructions outlined in the letter, which will likely include:

• Checking its records to see if there is any discrepancy in the records that were sent to the SSA;
• Asking the employee to check his or her records to determine if the information was accurately recorded and reported to the employer;
• Instructing the employee to contact the SSA to resolve any discrepancy;
• Providing the employee with a reasonable amount of time to resolve the discrepancy; and
• Documenting efforts to resolve the matter.

Unfortunately, neither the SSA nor any other governmental agency has provided specific guidance on how to respond to the new “no-match” letters. For example, there is no guidance on how much time to give a worker to resolve the discrepancy. There is also no guidance on what to do if the discrepancy cannot be resolved. Remember, the mere receipt of a “no-match” letter is not grounds to terminate a worker or take any other adverse action. It is not proof of ineligibility. The best recommendation we can give at this time is to develop companywide policies to follow the instructions in the “no-match” letter. As is so often the case in employment matters, uniform application of policies and proper documentation are critically important.

If you would like more information or guidance, please contact Tim Bernasek or John Barhoum at 503.224.6440.

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