No-match letters are issued by the SSA if an employee’s name does not correspond to a valid Social Security number. The no-match proposed rule provided that a no-match letter could be enough to notify an employer that an employee might not be eligible to work in the United States. The proposed rule provided procedures for employers to respond to the letters in compliance with immigration laws and created a safe harbor for employers that followed those procedures. But the proposed rule was challenged in federal court by unions and business groups and in 2007 was preliminarily enjoined from taking effect. The DHS rescinded the controversial no-match rule in a 2009 final rule.
Effective March 22, 2011, pursuant to a directive from the Social Security Administration Commissioner, the Social Security Administration (SSA) will again begin issuing “no-match” letters. The key issue now is how employers should respond to these no match letters as clear guidelines from federal regulators are still missing. To begin with it would be best to have a management level driven policy in handling a non-match letter in order to avoid an ad-hoc procedures or discriminatory issues in responding to the ‘no-match’ letters. Secondly, the employee should be given ample time (generally agreed from 60 to 120 days) to clear any mismatch in their records.
Any correspondence from SSA is required to be submitted in the event of an ICE I-9 audit, therefore employers should make note of their action items taken when they’ve received a ‘no-match’ letter from SSA. The day of receipt of the ‘no-match’ letter, actions taken to set it correct should be properly documented. However, no clear guideline exists on whether to take action against an employee on not being able to clear the ‘no-match’.
Since there are a lot of grey areas in responding to no’-match letters, it is best if legal advice is sought before any action is taken. Also a clear cut policy can greatly help in reducing discriminatory claims from employees and help provide guidelines in responding to ‘no-match’ letters.
Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information. Any issues regarding compliance and obligations under United States or International laws or regulations should be addressed through your legal department or outside counsel.