In March 2019, the Social Security Administration (“SSA”) resumed the practice of sending “No-Match Letters” to those employers who the SSA identified as having at least one name and social security number (“SSN”) combination submitted on a wage and tax statement (Form W-2) that did not match its SSA records. In response thereto, an employer must respond with any corrections on Form W-2c (a Corrected Wage and Tax Statement) within 60 days of receipt of the no-match letter.

Some employers may remember receiving these No-Match Letters in the past, until 2012, when the Obama Administration suspended this practice. The SSA states that the purpose of the reinstatement of the letters is simply to make employers aware that corrections are needed in order for the SSA to record an employee’s earnings. However, this seemingly “innocent” reason by the SSA is not being bought into by many employers or immigration practitioners. In fact, on the contrary, because of the current administration’s proven hardline approach toward immigration violators and employers, the No-Match Letters are causing much concern regarding potential immigration consequences.

For now, it is important to note that these No-Match Letters require employers to affirmatively and timely respond. The SSA directs the employer to take affirmative steps to correct the deficiencies in their records and address the SSA’s request. The SSA makes it clear that there are several reasons why reported names and SSN’s may not agree with its records, such as typographical errors, unreported name changes, and inaccurate or incomplete employer records.

What To Do If You Get a No-Match Letter

So, what should an employer do upon receipt of a No-Match Letter? Do not panic. The SSA is an excellent starting point on how employers should handle these letters. The SSA notifies and reminds all employers that:

  • A mismatch is not a basis, in and of itself, to take any adverse action against an employee, such as laying off, suspending, firing or discriminating against an employee;
  • Company policy should be applied consistently to all workers;
  • Any employer that uses the failure of the information to match SSA records to take inappropriate adverse action against a worker may violate state or federal law; and
  • The information received from SSA No-Match Letters does not make any statement regarding a worker’s immigration status. In other words, employers should not assume that a No-Match Letter is proof of an unauthorized or undocumented worker.

The following recommendations may assist employers in responding to a No-Match Letter:

  1. Review the No-Match Letter and analyze the relevant personnel records. If there are errors or incorrect information, correct each and resubmit with the corrected data.
  2. If your employment records match the SSA information, advise the employee of the SSA No-Match Letter and request that the employee confirm his/her SSN and name
  3. If there is no discrepancy between your employment and SSA records, request and give the employee reasonable time to contact the SSA in order to resolve the issue.
  4. If the employee is unable to provide a valid SSN and resolve the discrepancy, document your efforts.
  5. If you have questions, contact immigration counsel.

While these recommendations and reminders may seem comforting, and while No-Match Letter discrepancies alone are not concrete evidence of unauthorized employment in the U.S., it is important to note that if an employer fails to address and respond to a letter and to inquire with an employee, arguably this neglect or oversight, along with other factors, could be considered “constructive knowledge” of employing unauthorized workers.

The current administration has made it clear that it intends to enforce immigration employment verification laws more aggressively, as has been proved by the unprecedented employer worksite raids, I-9 audits coupled with the reincarnation of the SSA No-Match Letters. The lesson to be learned is very simple: employers must be proactive to protect their business and workforce and ignoring “No-Match Letters” carries severe consequences.

Note, some of the information in this Alert was derived from the American Immigration Lawyers Association.