I-9s and Social Security No-Match Letters: How Should You Handle Them?

With employers increasingly targeted over hiring illegal immigrants, here’s how to handle I-9s and no-match letters so that you stay on the right side of the law.

As the 110th Congress convenes this week, immigration is sure to be a hot issue, but lawmakers will be reflecting only what’s been going on in the nation in general.

With schools overcrowded and public resources stretched thin, many have called for tighter controls on illegal immigration. Others point out that illegal immigrants are only trying to better their lives, and in the American tradition, a way should be found for them to stay here and do so.

One battleground is the workplace, where employers are not only being chastised for hiring undocumented workers but are now being threatened with criminal action.

In these circumstances, we wanted to give you a basic review of two of the key HR procedures relating to immigration … proper compliance with the I-9 form and steps you need to take if you receive a so-called “no match” letter from the Social Security Administration (SSA), which, among other causes for its issuance, may indicate illegal status.

Form I-9

–Every new hire needs to complete an I-9, which requires the employer to verify the person’s identity and right to work in the United States, within 3 days of beginning work. Proof of identity can be a driver’s license, provided it contains a photograph and certain identifying information. Right to work can be certified by a birth certificate or U.S. passport in the case of a citizen, or a so-called “green card” (it’s actually white these days), which denotes permanent resident status for an alien. The I-9 form has information on other acceptable documents.

–Employers may decide whether or not to keep copies of the documents presented by employees. If you keep them, you need to keep them for all employees, says Attorney Angelo A. Paparelli, writing in Immigration Daily, to avoid a discrimination charge.

–I-9s should be retained for 3 years, or 1 year after the date employment is terminated, whichever is longer. If any enforcement proceedings are pending or likely, they should be retained indefinitely. The forms may be stored either on paper or electronically.

–Employers should accept any documents that meet the requirements for completing the I-9 form and should never ask for more or different documents than are minimally required. To do otherwise would leave the employer open to claims of discrimination based on national origin.

No-Match Letters

When the Social Security information you’ve sent to the government doesn’t match what’s in Social Security’s files, the agency issues a no-match letter. Some 8 million of these letters are sent out each year.

The mismatch can be triggered by lots of things, including a name change or clerical errors. It also may signify that a worker is not authorized to work. In any case, the letter can’t be ignored, say immigration law attorneys Loan T. Huynh and Ingrid N. Culp of the Fredrikson and Byron law firm. Here’s what they say to do:

–First and foremost, take no adverse action against the employee, but do recheck your files to be sure the information you submitted is what the employee gave you. Ask the employee to look at the submitted information as well, but do not again demand to see the employee’s documentation.

–If the information was correctly submitted, ask the employee to try to explain or find out why the no-match situation exists. Give the worker time to resolve the problem, but ask for progress reports along the way.

–If, in the course of making inquiries, you do reliably learn that the worker is not authorized to work in the United States, the law requires immediate termination. Because this step involves legal risk, especially in today’s charged atmosphere, Huynh and Culp recommend consulting with counsel before taking any such action.

–Finally, send your response to the SSA. The attorneys outline three possible ways of doing so: Report that (1) the employee has left the company, (2) you’ve found an error and here is the correct information, or (3) you and the employee have verified the submission and you simply cannot explain the discrepancy.