Summary of the rule
On August 15, 2007, the Department of Homeland Security (DHS) published a final rule that will require employers to take timely steps after receiving a “no-match” letter from the Social Security Administration (SSA) or the Department of Homeland Security (DHS). An employer who takes the steps will enjoy “safe harbor” against future allegations that the employer had “constructive knowledge” that the employee referred to in the letter was not authorized to work in the
Employers can receive an “Employer Correction Request” letter (commonly known as a “no-match” letter) from SSA if the combination of employee name and Social Security Number (SSN) reported to SSA by the employer do not match SSA records. U.S. Immigration and Customs Enforcement (ICE) can send a similar “Notice of Suspect Documents” letter to an employer during an I-9 audit when there is a discrepancy between information or documents retained by the employer and information in DHS records.
The rule specifies that an employer should take the following steps after receiving such a letter:
Within 30 days after receiving the letter, the employer should:
- Promptly check its records to determine whether a simple typographical or similar error is the cause of the discrepancy. If there is such an error, the employer would correct its records, and inform the relevant agencies that the employer’s records now match the agencies’ records, making a record of the manner, date, and time of the verification and correction.
- If the record check does not resolve the discrepancy, the employer must ask the employee to confirm that the employer’s records are correct. If the employee confirms that the employer’s records are correct, the employer must ask the employee to pursue and resolve the issue with the relevant government agency.
A discrepancy will be considered “resolved” only if the employer verifies with SSA or DHS that the employee’s name matches in SSA’s records the number assigned to that name, or, in the case of a DHS discrepancy, the employer verifies with DHS that the immigration status document or employment authorization document used for I-9 verification was assigned by DHS to the employee.
If the discrepancy is not resolved within 90 days of the employer’s receipt of the SSA or DHS no-match letter, the employer and the employee must complete a new Form I-9, using the same procedures used for newly hired employees, except that both section 1 and section 2 of Form I-9 would have to be completed within 93 days of receipt of the no-match letter. In this reverification process, no document containing the SSN or alien number that is the subject of the no-match letter (nor a receipt for the replacement of such a document) may be used to establish employment authorization or identity, and no document without a photograph may be used to establish identity.
If the discrepancy cannot be resolved, then the employer must choose between:
- Terminating the employee, or
- Facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien, which may subject the employer to penalties described in 8 C.F.R. 274a.10.
These procedures insulate an employer only from a finding of constructive knowledge that an employee was an unauthorized alien. An employer with actual knowledge that an employee was an unauthorized alien cannot avoid liability by following these procedures.