Homeland Security Publishes Proposed Rule Outlining Employer Responses to Social Security "No Match" Letters

Lew Clark
June 21, 2006 — 1,750 views  
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There are suggested methods for resolving "no-match" discrepancies. They include such detailed procedures as checking the employer's records to determine if the discrepancy was due to a typographical or clerical error; if no discrepancy is found, requesting the employee to confirm the employer's records are correct and, if not correct, resolving the discrepancy with the appropriate government agency. If the discrepancy is not resolved within 60 days of receipt of the "No-Match Letter" and after pursuing the above, the employer may, within three additional days, verify the employee's employment authorization and identity as if the employee was newly hired. The employer may not accept for verification any document that was called into question by either the SSA or the DHS original letter (such as the employee's Social Security card). The proposed rule also describes ''safe-harbor'' procedures that an employer can follow to secure protection. "Safe-harbor" procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee's identity and employment authorization through the I-9 process. Finally, if necessary, the employment may be terminated. A finding of "constructive" knowledge can result in a "knowing" hire violation under section 247A of the Immigration Reform and Control Act of 1986 (IRCA), which prohibits the knowing hire or continued employment of an alien unauthorized for employment in the United States. The proposed rule provides two examples of situations that may lead to a finding that an employer has constructive knowledge. These situations involve an employer's failure to take reasonable steps in response to either of two events: The employer receives written notice from the SSA that the combination of name and Social Security account number submitted to SSA for an employee does not match agency records; or the employer receives written notice from the DHS that the immigration-status or employment-authorization documentation presented or referenced by the employee in completing Form I-9 does not match DHS records. Fortunately, the proposed rule also states that the totality of the circumstances will be considered in determining whether DHS will actually find that an employer had constructive knowledge that an employee was an unauthorized alien. The proposed amendments to the regulation are not yet in effect. They are subject to a 60-day public comment period ending on August 14, 2006. Therefore, when and if a rule is published, there may be significant changes to the proposed legislation. Nevertheless, employers should prepare for the evident implementation of these proposed regulations and take appropriate action in response to an SSA "No-Match Letter." © Squire, Sanders & Dempsey L.L.P. All Rights Reserved June 2006

Lew Clark

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Lewis Clark concentrates his practice on counseling and advocacy for both private and public sector employers in all types of labor and employment matters and is an experienced mediator of employment and other civil litigation matters.