Since March 2019, over 575,000 employers have received employer correction request notices, also known as no-match letters. Social Security no-match letters notify employers that an employee’s name and Social Security number (SSN) as reported on W-2 records do not match SSA’s record of the employee and their SSN.
The purpose of the no-match letter is to advise employers that corrections are needed so SSA can ensure the accuracy of earnings records that are used to determine Social Security benefits. Even though these letters are relatively limited in content and seemingly harmless, they can open a wide variety of worksite compliance issues, depending on how the employer proceeds. Receipt of Social Security no-match letters should prompt an employer to take a number of actions but also to refrain from doing certain things.
Resuming Old Practice of Sending No-Match Letters
No-match letters are not a new tactic for the Social Security Administration. The practice dates back to 1993 when such letters were issued to both employers and employees on an annual basis. The SSA stopped sending no-match letters to employers in 2007 after an unsuccessful attempt by the Homeland Security Department (DHS) to issue a regulation governing the use of the letters for immigration enforcement. Letters continued to be sent to employees until 2012 when this practice was stopped.
The return of Social Security no-match letters causes concerns about a range of compliance issues and fears that employers will fire those workers that they believe might lack work authorization. An employer should never ignore a no-match letter, but they should also never regard a mismatch as an indicator of fraud or an immigration violation. Most of the time, letters are the result of a clerical error or name change due to marriage, divorce or other factors. Therefore, while employers cannot use no-match letters as conclusive evidence that an employee is not authorized to work in the US, they need to take the necessary steps and prepare for potential issues.
Social Security No-Match Letters as Part of Worksite Enforcement Efforts
With the current administration determined to increase workplace immigration enforcement, it is important for every employer to act appropriately upon receipt of a Social Security no-match letter. Information regarding no-match letters is not automatically shared between the SSA and the agencies that enforce immigration laws. However, the Department of Homeland Security can request information from the SSA for the purpose of identifying and locating aliens in the United States and enforcing laws.
While ignoring Social Security no-match letters would be wrong, employers should note that they do not constitute constructive knowledge that the affected employee is not work-authorized. Only DHS is legally authorized to determine an individual’s authorization to work. Despite their impact, receipt of no-match letters does not necessarily require employees to re-verify or produce specific documentation. Nor do they require immediate resolution with the SSA. Yet, receiving one of these letters should prompt employers to do their own I-9 self-audit, as they are frequently requested by ICE after issuance of a Notice of Inspection.
There is no concrete evidence that Social Security no-match letters are related to Trump’s immigration activities. Nonetheless, it is necessary to acknowledge that ICE is unlikely to look favorably upon employers who fail to respond to no-match letters if an immigration issue arises.Use this comprehensive guide to establish and implement procedures necessary for effective verification of work eligibility while preventing heavy fines and penalties.
What Should Employers Do If They Receive No-Match Letters
There are a number of legitimate reasons why reported names and SSNs may not align with SSA’s records. Still, employers have to be proactive upon receipt of Social Security no-match letters. Under the Immigration Reform and Control Act (IRCA), employers have to ensure that they employ only those workers authorized to work in the United States. A no-match letter can expose an employer to liability under IRCA for knowingly continuing to employ an unauthorized individual. This liability may be based upon actual knowledge or constructive knowledge.
However, acting upon no-match discrepancies is not that simple. Employers cannot simply ignore them, but can potentially face discrimination lawsuits for being too keen on responding to no-match letters. For these reasons, it is advisable that employers establish and implement specific procedures for responding to no-match letters and maintaining records of their responses. Also, employers have to ensure applying these policies consistently to all employees to avoid any claims of discrimination.
During an ICE I-9 audit, the Notice of Inspection usually requests employer records regarding receipt of no-match letters and evidence of how the company responded to them. Therefore, it is recommended that employers take the following steps:
- Follow the instructions within Social Security no-match letters and register online to find out which workers have discrepancies in their SSA files,
- Inform affected employees of the no-match notice and ask them to confirm the name and SSN found in employment records,
- Advise the workers to contact the SSA and correct their SSA records and give employees a reasonable period of time to resolve the issue,
- Stay in contact with the affected workers to learn and document their efforts to address and fix the issue,
- Review documents the employee chooses to offer that prove the mismatch is resolved and submit any employer corrections to the SSA.
Lastly, if the employee is unable to provide a valid Social Security number, employers should consider proceeding with adverse employment action.
Weighing Risks before Deciding How to Address No-Match Letters
If a company is audited by ICE, they can request copies of Social Security no-match letters the company has received. Furthermore, it is possible that ICE will make a negative finding against employers if they have ignored no-match letters sent by the SSA. SSA has warned employers against taking adverse employment action based solely on receipt of a no-match letter. Yet, ICE may conclude employers had constructive knowledge that the employee was not authorized to work in the United States if they simply ignore the letter. In short, employers have to be careful when addressing no-match letters. Acting too hastily can subject an employer to a charge of discrimination. On the other side, ignoring a no-match letter may lead to a finding that an employer knowingly continued to employ an individual not authorized to work in the U.S.
The I-9 area of compliance is already facing a significant surge in activity and fines. There has been a significant increase in worksite investigations, I-9 audits, and other worksite-related arrests in FY 2018 and this trend continues in FY2019. In the atmosphere of increased investigations and enforcement, employers should regard receiving no-match letters as an additional reason to pay attention to internal compliance.
Thus, it is critical that businesses develop a system for both maintenance of and response to Social Security no-match letters as well as I-9 compliance in general. To achieve this, they should consider integrating an automated I-9 verification software. This allows them to replace unmanageable paper forms that are difficult to audit and ensure that no forms entered into the system contain incorrect information. For example, such software will not allow entry of an individual’s Social Security number if required information is missing from the form. Automation makes the completion process easier for employers and ensures consistency in how documents are completed and reviewed, so the number of potential issues later on is significantly reduced.Outsource I-9 verification to save the time necessary for completing new hire forms, effectively verify the identity and employment eligibility of your workers and stay compliant with federal requirements.