Recently, the DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) issued instructions to employers and employees regarding how to handle “no match” information. A no-match occurs when the name and social security number (“SSN”) of an employee do not match. There can be many causes for a no-match. So, the fact that one arises does not, by itself, indicate that the employee lacks employment authorization. However, in assessing whether to initiate an investigation, ICE looks at the number of no-matches that employers receive and how they handle them.

The OSC instructions to employers mirror the “Safe Harbor” regulations that ICE promulgated but withdrew in 2009. When a no-match arises, employers are advised to first check their own records for any administrative errors. If none appears, they should ask the employee to confirm his/her name and SSN. If that does not resolve the problem, the employer should instruct the employee to contact the Social Security Administration (“SSA”) to correct or update its records. Employers should have a standard protocol for addressing no-match problems that does not vary by the nationality of the affected employee. Once the employee has been referred to the SSA, the employer should follow up periodically to address the status of the no-match and see if it has been resolved.

Additional information about how to handle no-match situations can be found at the OSC website (http://www.justice.gov/crt/osc/htm/SSA.php).