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DHS Announces Proposed Regulations Regarding "no-match" Letters

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The U.S. Department of Homeland Security announces proposed regulations regarding Social Security Administration "no-match" letters and worksite enforcement

(Posted June 19, 2006)

The Dept. of Homeland Security (DHS) announced on June 9, 2006, the release of two new sets of federal regulations that would aim to improve worksite enforcement, reduce the employment of unauthorized workers, and help prevent the alleged use of false Social Security numbers (SSNs).  In a DHS Press Release, Fact Sheet, and Question and Answer piece, DHS describes its proposed regulations that provide guidance for employers to follow when handling "no-match" letters received from either the Social Security Administration (SSA) or DHS.  The proposed regulations were published on June 12, 2006, and interested parties have 60 days from that date within which to submit comments on them.

The SSA sends no-match letters to a worker and his or her employer to notify them when the worker has not received credit for earnings in the previous tax year as reported by the employer on the W-2 form.  When a worker's W-2 contains a name or Social Security number that does not match the SSA's records, the earnings withheld from the worker's pay for social security go into the SSA's Earnings Suspense File and the worker does not get credit for them.

NILC, in conjunction with other immigrant worker advocate organizations, will be providing comments to DHS on the proposed regulations the agency has issued with regard to "no-match" letters.

NEW "NO MATCH" RULE

The new DHS policy on "no-match" letters would require that employers take certain steps upon receipt of such a letter.  The "reasonable steps an employer should take when this occurs" include:

Checking the employers' records to ensure that the "no-match" or discrepancy is not a result form a typographical or clerical error;
If there is an error, the employer should resubmit the information to the relevant agency (SSA or DHS);
If the discrepancy cannot be resolved, the employer should "promptly" request the employee to confirm that the employer's records are correct;
If the employer's records are not correct, the employer should take the necessary steps to correct the error with the appropriate agencies;
If the employee confirms that the employer's records are correct, the "reasonable employer" would ask the worker to contact the SSA to resolve the discrepancy;
If the employer is unable to resolve the discrepancy within 60 days of receipt of the "no-match" letter, then the employer should reverify the individual's work authorization without using the documents that were the subject of the "no-match" letter;
If the employer is unable to resolve the "no-match," the employer may choose to terminate the employment relationship or run the risk that DHS will find that the employer had constructive knowledge of employing an unauthorized worker in the U.S.
If an employer follows the procedures listed above in good faith, the employer can be "assured" that it will not be subject to sanctions.  DHS maintains, however, that the receipt of a "no-match" letter does not, in and of itself, indicate that a worker is unauthorized, but states that an employer's failure to follow the "reasonable steps" outlined above could subject the employer to possible penalties.

NEW DHS "ELECTRONIC I-9 RULE"

DHS also announced a proposed regulation designed to improve employment eligibility verification by permitting employers to digitize the I-9 employment eligibility verification form that is used to verify workers' employment eligibility.  Currently, employers are required to keep the I-9 in hard copy.  The new "Electronic I-9 Rule" would allow employers to electronically record and store their I-9 forms.  The DHS rule will codify existing standards used by the Internal Revenue Service for electronic storage of tax accounting records.  According to DHS, electronic storage of I-9 forms will enhance Immigration and Customs Enforcement's (ICE's) ability to perform worksite enforcement.

These proposed regulations will also be subject to a 60-day public comment period, although the I-9 regulation will become effective on an interim basis as soon as it is published.

NILC'S CONCERNS WITH THE PROPOSED RULES

NILC is concerned that if the proposed regulations are implemented, authorized workers will be unjustly fired because SSA and DHS databases are notoriously inaccurate, and that employers will use no-match letters as a pretext for retaliating against and intimidating undocumented workers.  The proposed DHS regulations provide that employers may terminate the worker who is the subject of a "no-match" letter if the worker does not resolve the discrepancy within 60 days.   If this proposed regulation is adopted, many authorized workers may not be able to resolve possible discrepancies within the required 60-day period.

We believe it was counterproductive for DHS to issue the press release and accompanying documents before publishing the proposed regulations because it could have led to employer confusion and fear. As we have seen in the past, employers tend to act precipitously upon receiving "no-match" letters, usually by taking adverse action against workers.  Although these are proposed regulations, employers will still be impacted by them.

Advocates should be prepared for many more workers to be fired from their jobs based on the employer's receipt of a "no-match" letter in the coming weeks.

Now that the proposed regulations have been published in the Federal Register (71 FR 34281-85 (June 14, 2006)), NILC is drafting and disseminating model comments for your organizations to submit or to sign on to.  We will also be scheduling a national conference call through the Low-Wage Immigrant Worker (LWIW) Coalition to strategize on our collective responses to these proposed regulations.