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.

The new rules add two specific examples of where an employer may be deemed to have "constructive knowledge" regarding illegal employment. These include:

1) Receiving written notice from the SSA that the combination of the name and social security number submitted for an employee does not match SSA records.

2) Receiving written notice from DHS that an immigration status document or employment authorization document presented by an employee as proof of work authorization is assigned to another person or that there is no DHS record of the status document or employment authorization document being issued to that employee.

Employers may take specific steps under the "safe-harbor" procedures to protect against the DHS using the no-match letter as evidence that the employer has constructive knowledge of employing an illegal worker. To be eligible for "safe harbor" under the regulations, an employer must take action within 30 days of receipt of the no-match letter by either correcting clerical errors or requesting the employee to correct the error directly with the SSA or DHS. In the event that the discrepancy cannot be clarified within 90 days, the employer must then choose between terminating the employee or face the risk that DHS will determine they have constructive knowledge of employing an illegal worker.

Although DHS will continue to consider the totality of the relevant circumstances in determining the employer's "constructive knowledge" regarding illegal employment, employers should pay special attention to the "safe harbor" procedures. Employers should also implement and execute company policies in a non-arbitrary, consistent and non-discriminatory manner.