By BLR Editor Sean Dean
In light of important new rules on social security no-match letters the federal government announced last Friday, we’re forgoing our usual column to bring you this News Extra from our sister web site, HR.BLR.com. It details what you need to know about this tough new regulation, which takes effect on September 14 … and the penalties of up to $10,000 per violation it can bring.
The federal government has published a final rule describing an employer’s obligations and its options for avoiding liability after receiving a no-match letter from the Department of Homeland Security (DHS) and the Social Security Administration (SSA).
The DHS sends out a “no match’ letter to an employer when the immigration-status or employment-authorization documentation presented or referenced by the employee is inconsistent with the agency’s records. The SSA sends out a “no match” letter when the combination of name and social security number submitted for an employee fails to match.
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The new regulation clarifies that employers may be held liable if they fail to take “reasonable steps” within 90 days of receiving the no-match letter.
The final regulation describes the steps that an employer might take after receiving a no-match letter that the DHS would consider reasonable. The regulation states that:
- A reasonable employer checks its records promptly after receiving a no-match letter to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in the employer’s records, or in its communication to the SSA or DHS. If there is such an error, the employer corrects its records, informs the relevant agencies, verifies that the name and number, as corrected, match agency records–in other words, verifies with the relevant agency that the information in the employer’s files matches the agency’s records; and makes a record of the manner, date, and time of the verification. Immigration and Customs Enforcement (ICE) would consider a reasonable employer to have acted promptly if the employer took such steps within 30 days of receipt of the no-match letter.
- If such actions do not resolve the discrepancy, a reasonable employer would promptly request that the employee confirm that the employer’s records are correct. If they are not correct, the employer would take the actions needed to correct them, inform the relevant agencies (in accordance with the letter’s instructions. if any), and verify the corrected records with the relevant agency. If the records are correct according to the employee, the reasonable employer would ask the employee to pursue the matter personally with the relevant agency, such as by visiting a local SSA office, bringing original documents or certified copies required by SSA, which might include documents that prove age, identity, citizenship, or alien status, and other relevant documents, such as proof of a name change, or by mailing these documents or certified copies to the SSA office, if permitted by SSA. ICE would consider a reasonable employer to have acted promptly if the employer took such steps within 30 days of receipt of the no-match letter.
The regulation also describes a verification procedure that the employer may follow if the discrepancy is unresolved within 90 days of receipt of the no-match letter. If the procedure is completed, and the employee is verified, then even if the employee is in fact unauthorized to work in the United States, the employer will not be considered to have constructive knowledge of that fact based on receipt of the no-match letter. However, there is no safe harbor for employers that for some other reason have actual or constructive knowledge that they are employing an alien unauthorized to work in the United States.
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The verification procedure involves the employer and employee completing a new Form 1-9 using the same procedures as if the employee was a new hire. The regulation requires that both Section 1 (Employee Information and Verification) and Section 3 (Employer Review and Verification) be completed within 93 days of receipt of the no-match letter.
If the verification procedure fails to verify the employee’s identity and work authorization, the employer must choose between:
- Taking action to terminate the employee, or
- Facing the risk that the DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, is violating federal law.
The regulation goes into effect September 14, 2007.