After much controversy and litigation, the Department of Homeland Security threw in the towel and rescinded its proposed No Match rules.
For years, the Social Security Administration (“SSA”) has been sending “No-Match Letters” to employers who employed individuals whose social security numbers (“SSN”) did not match their personal information. The SSA, however, provided unclear guidance for responding to the letters. Seeking to fill the void, DHS the agency responsible for enforcement of our immigration laws, issued a new rule describing the steps an employer must take when it receives a “no match” letter from DHS or the Social Security Administration (SSA).
In October 2007, the AFL-CIO labor union obtained a court injunction prohibiting enforcement of the new rule. The DHS subsequently issued amended regulations, seeking to address some of the flaws raised by the union. But the effort lost steam, particularly after the new administration took over.
“After further review,” wrote the agency in its rescission notice, “DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.” The rescission becomes effective November 6, 2009.
DHS notes that employers should still react when receiving a no match letter. An employer who receives such a letter may be seen to be on notice that the worker could be illegal. “Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘‘constructive knowledge.’’ A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information.”
“Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.” Thus, the government has put employers between a rock and a hard place, shrugged its bureaucratic shoulders, and said “Too bad for you.”
Employers who receive No Match letters should take action to protect themselves from possible immigration enforcement actions.
First, upon receipt of a No Match letter, the company should research its own records to check for typographical errors.
If no errors are found, the employer should notify the employee that the SSN is incorrect. Ideally the notice should be in writing.
The company should advise the employee to resolve the issue with the SSA within a reasonable period of time. Thirty to ninety days ought to be sufficient.
If the employee is unable to resolve the discrepancy then the employer should probably terminate the employee.
Employers should be aware that improper terminations may be a violation of federal law. The DHS wrote in its commentary that it “acknowledges that an employer who terminates an employee without attempting to resolve the issues raised in a No-Match letter, or who treats employees differently based upon national origin, perceived citizenship status, or other prohibited characteristics may be found to have engaged in unlawful discrimination under the anti-discrimination provision of the Immigration and Nationality Act of 1952 (“INA”).
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC