After a break of four years, the Social Security Administration (SSA) has
once again started sending “no-match” letters to employers notifying them that
the Social Security number (SSN) reported on a W-2 form does not match an
employee’s name in SSA records.
The new version of the letter differs in some significant respects from the
previous version which was used until 2007. The new version does not include an
insert from Immigration & Customs Enforcement (ICE) warning employers that
failure to take action in response to a no-match letter could be construed as
evidence of an employer’s constructive knowledge that it was continuing to
employ an unauthorized worker. The new version also only lists one employee per
letter, rather than providing information on multiple employees.
sample copy of the letter is available online. The
reverse side of the letter requests certain information from employers so
that the SSA can credit earnings to the proper employee’s SSA record.
The letter explains:
This letter does not imply that you or your employee intentionally
provided incorrect information about the employee’s name or SSN. It is not a
basis, in and of itself, for you to take any adverse action against the
employee, such as laying off, suspending, firing or discriminating against
the individual. Any employer that uses the information in this letter to
justify taking adverse action against an employee may violate state or
Federal law and be subject to legal consequences. Moreover, this letter
makes no statement about your employee’s immigration status.
ICE had proposed a rule in 2007 detailing procedures for responding to
no-match letters that would have provided employers with a “safe harbor” from
any adverse action by ICE. As previously reported, a federal judge halted the
rule’s implementation, and in 2009, ICE rescinded the rule.
However, ICE has not forgotten the no-match letter. In its comments
accompanying the rescission of the rule, ICE included the following statement:
Receipt of a No-Match letter, when considered with other probative
evidence, is a factor that may be considered in the totality of the
circumstances and may in certain situations support a finding of
“constructive knowledge.” A reasonable employer would be prudent, upon
receipt of a No-Match letter, to check their [sic] own records for errors,
inform the employee of the no-match letter, and ask the employee to review
the information. Employers would be prudent also to allow employees a
reasonable period of time to resolve the no-match with SSA.
In proposing the rescission, ICE went so far as to include a summary of
criminal prosecutions of employers for misconduct after receiving a no-match
letter. Significantly, ICE investigations of I-9 records continue to include
requests for copies of no-match letters received by the employer.
Although there is no current guidance for employers from ICE, the Office of
Special Counsel for Immigration-Related Employment Practices of the Department
of Justice (OSC) does offer some
general guidelines for employers to follow in responding to no-match
The guidelines explain that employers should not terminate workers based on
receipt of a no-match letter alone, nor should they attempt to re-verify work
authorization by requesting completion of a new I-9 form. Instead, OSC advises
employers to provide workers a “reasonable period of time” to resolve any
discrepancy in SSA records.
There are, however, no federal statutes or regulations in effect that define
this reasonable period of time. OSC advises that a “reasonable period of time”
depends on “the totality of the circumstances.” The rescinded ICE guidance had
allowed up to 90 days. For E-Verify purposes, SSA can put a tentative
nonconfirmation of work authorization in place for up to 120 days, suggesting
that might be a reasonable period of time to resolve discrepancies.
Unfortunately, the net effect of the various actions and inactions of the
government agencies described above is that employers know they cannot ignore
no-match letters, but have no reliable government guidance as to how to respond.
Employers should work with counsel to develop consistent, non-discriminatory
procedures that provide employees a “reasonable period of time” to resolve
no-matches. What is clear is that employers should not terminate employees based
on receipt of a no-match letter alone. What is not clear is how much time, and
what guidance, if any, they should provide employees.