Summary of Department of Homeland Security’s
Final Rule on “No-Match” Letters
Provided by Rebecca Whitehouse,
Attorney
8 U.S.C. 1324a(a)(2) makes it
unlawful for an employer to continue employing an alien knowing
that the alien is, or has become, unauthorized for such employment.
8 C.F.R. 274a.1 further defines the term “knowing”
to include “constructive knowledge” – “knowledge
that may fairly be inferred through notice of certain facts
and circumstances that would lead a person, through the exercise
of reasonable care to know about a certain condition.”
There has been much confusion about whether an
employer could be deemed to have “constructive knowledge”
that a particular employee is unauthorized when the employer
receives a letter from the Social Security Administration stating
that individual’s name and social security number, as
provided by the employer in its W-2 earnings reports, do not
match agency records for that number/name. These are referred
to as “No-Match” letters. Employers may also receive
a letter from U.S. Immigration and Customs Enforcement, usually
following an investigation audit of the employer’s I-9
forms, stating that the agency cannot confirm that the immigration
status document or employment authorization document was assigned
to the employee who presented it during the I-9 process.
Because the reason for the “no-match”
could be something as simple as a clerical error or a name change
by the employee (e.g. after getting married), or alternatively,
could be an indication that the employee is not authorized for
employment, businesses are often unsure about what actions to
take in response to such “No-Match” letters.
Department of Homeland Security’s Immigration and Customs
Enforcement has issued a Final Rule explaining the circumstances
under which receipt of a “No-Match” letter can lead
to a finding of constructive knowledge by the employer that
the worker lacks employment authorization. The Final Rule amends
this definition to provide that an employer may be found to
have constructive knowledge based on the employer’s failure
to take reasonable steps after receiving a No-Match letter from
the Social Security Administration or from Department of Homeland
Security. Such finding would not be automatic, but would be
based on the totality of the circumstances. The rule also explains
the steps an employer can take to avoid a finding of constructive
knowledge, and spells out the actions that would be considered
“reasonable steps” by the employer to create a “safe
harbor” thereby preventing a finding of constructive knowledge.
The final rule was published on August 15, 2007,
and is scheduled to become effective 30 days thereafter (i.e.
September 14, 2007). However, a temporary restraining order
has been issued restraining the government from taking steps
to implement the final rule, pending a hearing scheduled for
October 1, 2007.Notice from the Social Security Administration.
Within 30 days of receiving a No-Match letter
from the Social Security Administration (SSA), the employer
should first check its own records to determine whether a clerical
or typographic error is the cause. If it is, the employer should
correct the error in its records and notify the Social Security
Administration of the correct information. The employer should
then verify with the SSA that the employee name and number,
as corrected, now match agency records. The employer should
document this verification and should correct the employee’s
I-9 form, but the employer should not perform a new I-9 verification
on the employee.
If the employer determines that the discrepancy
is not due to an error in its own records, the employer should
ask the worker to confirm that the name and social security
number in the employer’s records are correct. If they
are not, the employer must make the correction, verify the corrected
information with the Social Security Administration, and document
that it has taken these steps.
If the employee confirms that the employer’s
records are correct the employer should notify the employee
of the date it received the No-Match letter and ask the employee
to resolve—within 90 days of the employer’s receipt
of the letter--the discrepancy with the Social Security Administration.
If, within 90 days of having received the SSA
letter, the employer has not been able to verify that the employee’s
name and social security number match SSA records, the employer
must then perform, within the next 3 days, a new I-9 verification
of the worker’s employment authorization and identity
as if the employee were newly hired. The employer must not accept
any document referenced in the notice from Social Security Administration
or any document that contains the disputed social security number.
Also, the employee would have to present a document that contains
a photograph in order to establish identity or both identity
and employment authorization. The employer should retain the
new I-9 form along with the prior I-9 form.
Notice from Department of Homeland Security
An employer may also receive written notice from DHS that the
immigration status document or employment authorization document
presented by the employee is assigned to another person or has
not been assigned to anyone. Within 30 days of receiving such
notice, the employer must contact DHS to try to resolve the
questionable document, and the employer should make a record
of these contact efforts.
If, within 90 days of receiving the DHS letter,
the employer has not been able to verify that the document in
dispute has in fact been assigned to the employee, the employer
has an additional 3 days to perform a new I-9 verification of
the worker’s employment authorization and identity. The
employer must not accept any document referenced in the notice
from DHS, nor any document that contains the disputed social
security number or alien number listed in the notice, nor any
receipt for a replacement version of a disputed document. Again,
the employee would have to present a document that contains
a photograph in order to establish identity or both identity
and employment authorization. The employer should retain the
new I-9 form along with the prior I-9 form.
If the Employee’s Work Authorization
Cannot be Verified. The employer should work through the steps listed above
– attempting to resolve the discrepancy and if necessary
conducting a new I-9 verification – before taking action
to terminate the employee, unless of course the employer gains
actual knowledge during the process that the person is unauthorized
(e.g. if the employee admits to lacking work authorization).
However, if the problem has not been resolved and employee has
not able to produce documentation for a new I-9 verification,
the employer then must decide whether to terminate the employee
or face the risk in a subsequent government enforcement action
of being found to have constructive knowledge that the worker
was unauthorized for employment.
No Discrimination
The regulation does not change the employer’s obligation
to refrain from discriminatory practices. Employers are reminded
to follow these steps consistently and uniformly. Employers
should not make inferences about a worker’s immigration
status or employment authorization from factors such as his
or her accent or foreign appearance.
Further, employers should not ask for more or
different documents beyond those listed as acceptable for I-9
verification. Nor should employers refuse to accept documents
tendered by the employee which reasonably appear to be genuine
and to relate to the individual, except of course those documents
in dispute about which the employer has received the written
notice from SSA or DHS.
Rebecca Whitehouse
is an attorney who specializes assisting employers and individuals
in compliance with workplace laws and immigration benefits.
She can be reached by phone at: 512-266-6344 or by email at:
becky@rebeccawhitehouse.com.
You may mail
correspondence to: P.
O. Box 204042 • Austin, Texas 78720
