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Total Articles: 15

Responding to Social Security Number Mismatches: Threading the Needle between Discrimination and Employment-Eligibility Liability

With the spring and summer fast approaching, many employers will start hiring additional employees and other temporary workers for the upcoming season. An upswing in hiring also means that employers may see an upswing in mismatched Social Security Numbers (SSN). Outside of the hiring context, employers also learn about employee SSN mismatches in other ways, from the Social Security Administration’s (SSA) “no-match” letters to wage garnishment notices, state and local agency inquiries, and even employees themselves. The penalties for overreacting to or ignoring an SSN mismatch are severe.

SSA Resumes Issuance Of "No Match" Letters

The Social Security Administration (SSA) has resumed sending out No-Match letters to employers. This ends a long break that started when the Department of Homeland Security's 2007 no-match regulation (now rescinded) was blocked by a court. SSA's new letter says that the recipient is not required to respond, and that the letter alone should not be the basis for taking any adverse action against the employee listed. If you do respond to the letter, the SSA may share the information with the Internal Revenue Service or the Department of Justice.

DHS Throws In The Towel, Rescinds No-Match Rules.

Plagued by controversy and legal battles, the Department of Homeland Security (DHS) is rescinding the 2007 No-Match Rule in a regulation to be published in the October 7 Federal Register.

DHS: Social Security No-Match Regulation Will NOT Happen (But Does It Matter Anyway?)

At the same time the Department of Homeland Security (DHS) announced that the agency would follow-through on the federal contractor/E-Verify regulation, Secretary Janet Napolitano stated that DHS would be rescinding the Social Security “No-Match” regulation (see the DHS’ press release). Pro-business and pro-labor groups alike applauded the action. However, the end of the “No-Match” regulation resolves nothing for employers and seemingly returns us to a lack of clarity for employers on what steps to take when a No-Match letter is received.

DHS Tests Authority in Regulating Social Security No-Match Letters.

The Department of Homeland Security (DHS) published its final rule making employers accountable for resolving mismatched social security numbers of employees. The regulation, “Safe Harbor Procedures for Employers who Receive a No-Match Letter,” describes the legal obligations of an employer when the employer receives a no-match letter from the Social Security Administration (SSA) or notice from the Immigration and Customs Enforcement (ICE), the internal investigative arm of DHS. It establishes “safe-harbor” procedures that the employer can follow in response to such a letter or notice to avoid being imputed with constructive knowledge that an employee targeted in a no-match letter is a person not authorized to work in the United States.

The Department of Homeland Security Releases An Updated No-Match Letter Rule.

On October 23, 2008, the Department of Homeland Security (DHS) released its supplemental final No-Match Letter Rule and announced that it will take effect immediately upon publication in the Federal Register on a not yet scheduled date. The supplemental final rule does not substantively change the safe harbor procedures described in the rule as originally written and issued in August 2007 or as supplemented in March 2008. The DHS will seek to lift the preliminary injunction imposed by Judge Charles Breyer of the Northern District of California in October 2007. Once the injunction is lifted, employers who receive No-Match letters issued by the Social Security Administration (SSA) but follow the safe harbor procedures described in the No-Match Letter Rule, will be sheltered from a charge of constructive knowledge that the individual named in the letter was not authorized to work in the United States. DHS takes the position that its supplemental final rule addresses the issues raised by Judge Breyer and if the injunction is lifted, will take immediate steps to implement the rule. Judge Breyer has rescheduled a status conference in the case from October 31 to November 21, 2008.

Update on No-Match Regulations.

On March 21, 2008, the Department of Homeland Security released a Supplemental Proposed Rulemaking for the no-match rule previously published in August 2007 (the 2007 Final Rule). Interested persons have 30 days to submit comments on the supplemental regulation. The 2007 Final Rule proposed amendments to the Immigration and Nationality Act by establishing safe harbor procedures for employers who receive Social Security Administration "no-match" letters.

Status of "No-Match" Letter Regulation and Compliance with Continued Immigration Enforcement Efforts (pdf).

This edition gives a status report on the Department of Homeland Security's rule, announced in August 2007, addressing what employers should do upon receipt of a "no-match" letter from the Social Security Administration. Implementation of the rule was recently enjoined by a federal judge, and DHS is working on a revised rule. The article goes on to provide pointers on what employers can do in response to no-match letters pending publication of the revised rule.

DHS Appeals Injunction to Social Security No-Match Rule.

On December 5, 2007, Department of Homeland Security ("DHS") Secretary Michael Chertoff released a statement confirming that DHS filed an appeal to the Ninth Circuit Court of Appeals requesting that the court lift the injunction against implementing the DHS no-match rule. On October 10, 2007, a federal court in California issued a preliminary injunction preventing DHS and the Social Security Administration ("SSA") from implementing the rule entitled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter. The court enjoined SSA from sending out the no-match letters because the letters were to include DHS language threatening possible criminal and civil liability for employers that failed to respond to the letters.

Judge Suspends Social Security No-Match Regulations.

On October 10, 2007, a San Francisco district court judge granted an order preventing the implementation of the new Social Security No-Match regulations. U.S. District Judge Charles R. Breyer halted over 140,000 no-match letters from being issued by the Social Security Administration (SSA) to employers relating to approximately 8 million employees. This order was granted in connection with a lawsuit filed against the Department of Homeland Security (DHS) by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and other organizations on the grounds that the new regulations could lead to mass layoffs in low-wage industries. The order is in effect until a final decision can be reached in the case (which could be many months).

Judge Issues Preliminary Injunction in No-Match Litigation.

On October 10th, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking implementation of the Department of Homeland Security ("DHS") rule that would use Social Security mis-match records as a tool for immigration enforcement.

Immigration Alert - No-Match Regulations Placed On Hold Until October 1.

On Friday, August 31, a federal district court judge granted a nationwide temporary restraining order placing a hold on the Department of Homeland Security’s (DHS) new Social Security No-Match regulations. The final regulations were scheduled to take effect on September 14 (see the Ogletree Deakins’ E-Alert dated August 10, 2007.) The ruling also puts a hold on the federal government’s plan to start sending out No-Match Letters today.

DHS Mismatch Letter Published Today (pdf).

The final mismatch or "no match" regulation appears in today's Federal Register. Thus, the rule will be in effect September 14, 2007. Employers need to get ready now.

New Regulations Issued Regarding Social Security No-Match Letters.

Today, the Department of Homeland Security (DHS) implemented new rules regarding Social Security No-Match Letters. Under the regulations, new specific legal obligations are imposed on employers that receive the so-called "no-match" letter from the Social Security Administration (SSA). A no-match letter may be issued when an employee's social security number does not match the employee's name in the SSA database.

DHS Safe Harbor Rule for SSA Mismatch Letters (pdf).

Today,the Department of Homeland Security announced publication of a final rule establishing safe harbor procedures for employers who receive an SSA mismatch letter or notice from DHS that an individual lacks authorization to work.
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