On October 23, 2008, DHS issued a supplemental final rule concerning responses by employers to "no-match letters" from the Social Security Administration (SSA). A "no-match letter" informs employers when SSA records do not match employees' names and social security numbers provided on employers' Form W-2 wage reports. DHS initially proposed this rule in June 2006 and issued a final rule in August 2007; however, the U.S. District Court for the Northern District of California stayed implementation of the rule.
Pursuant to the supplemental final rule, DHS will provide employers a safe harbor from liability under section 274A of the Immigration and Nationality Act if they take specific steps after receiving a no-match letter from SSA. In general, an employer may be charged with constructive knowledge of an employee's unauthorized status if it does not undertake additional inquiries when it has information that would lead a person exercising reasonable care to become aware of the employee's unauthorized status. In the no-match context, an employer's failure to conduct reasonable due diligence when it receives an SSA no-match letter can, in the totality of the circumstances, establish constructive knowledge. However, DHS will not use receipt of a no-match letter as evidence of constructive knowledge if an employer complies with the following series of procedures:
- The employer must check its records to determine whether the discrepancy resulted from a typographical or clerical error. If so, the employer must correct the error and inform SSA of the corrected information. The employer must also verify with SSA that the employee's corrected name and social security number match SSA records. The employer should record the manner, date, and time of such verification, and keep the record with the employee's Form I-9. In this case, the employer may update the employee's Form I-9 or complete a new Form I-9 (while retaining the original Form I-9), but the employer should not perform a new Form I-9 verification. The employer must complete these actions within 30 days of receiving the no-match letter.
- If the employer determines that the discrepancy is not due to its own recording error, it must promptly request that the employee confirm that the name and social security number in the employer's records are correct. Although a formal time limit is not provided in the text of the rule, DHS believes that the obligation for prompt notice would ordinarily be satisfied if the employer contacts the employee within five business days after the employer has completed its internal records review. If the employee responds that the employer's records are incorrect, the employer must correct, inform, verify, and record as described above. If the employee states that the records are correct, the employer must promptly request that the employee resolve the discrepancy with SSA within 90 days of the date that the employer received the no-match letter.
- If an employer cannot verify with SSA within 90 days of receiving the no-match letter that the employee's name and social security number match SSA records, the employer must reverify the employee's employment authorization and identity within an additional three days. To do so, the employer must complete a new Form I-9 for the employee. The employee must complete Section 1 ("Employee Information and Verification") and the employer must complete Section 2 ("Employer Review and Verification") of the new Form I-9 within 93 days of the employer's receipt of the no-match letter. To establish employment authorization, identity, or both, the employer may not accept any document contained in a "notice of suspect document" from DHS, any document that contains a social security number or alien number disputed in an SSA no-match letter or DHS notice of suspect document, or any receipt for an application for a replacement of such a document. The employee must present a document that contains a photograph to establish identity or both identity and employment authorization. The employer must retain the new Form I-9 with the employee's prior Form I-9.
The supplemental final rule also prescribes specific procedures that an employer should follow when it receives a DHS notice of suspect document, and provides a safe harbor in these cases as well.