Articles
Berliner Cohen Employer Update
September 13, 2007
Employer Obligations to Investigate and Act on 'No Match Letters'
Re: Berliner Cohen Employer Update (Revised)1
An amended U.S. Department of Homeland Security (“DHS”) regulation 2 increases employer responsibility to investigate a “No Match Letter” issued by the Social Security Administration (“SSA”) that an employee’s name and social security number do not match the SSA’s records or a written notice from the DHS that there is a discrepancy in the documents presented to complete the Form I-9. On the eve of the original effective date, the AFL-CIO obtained a court order delaying the implementation of this regulation until after a court hearing in San Francisco set for October 1, 2007. We will issue further updates about this significant development. Currently, the regulation is set to become effective on October 1, 2007.
The amended regulation contains step-by-step actions that the DHS will consider a reasonable response to receiving a “No Match Letter” and which, if taken, will protect the employer against claims that it constructively knew that it was employing an alien who is not authorized to work in the United States. If, however, the discrepancy in the employee’s documentation is not resolved after investigation, the regulations leave the employer with little choice but to terminate the employee.
When is my business affected?
You must act promptly if you have received either:
An “Employer Correction Request,” commonly referred to as a “No-Match Letter,” from the SSA informing the employer that an employee’s name and/or social security number do not match the official records; or
Written notice from the DHS that the immigration status document or employment authorization document presented in completing Form I-9 was assigned to another person, or that there is no agency record that the document was assigned to anyone.
What are my obligations if I receive such a notice?
If you receive such a notice from the SSA or DHS, you should take the following steps:
Promptly check your records to determine whether the discrepancy results from a typographical, transcription, or other clerical error in your records or your communication to the SSA or DHS. If such an error exists, you should correct your records, notify the relevant agencies, and verify with the relevant agencies that the information in your files now matches the agency’s records. You should make a written record of the manner, date and time of the verification with the relevant agencies and keep it in your files. Your actions will be considered reasonably prompt if you act within 30 days of receipt of the no-match letter.
If you do not find a clerical error, you should promptly request that the employee confirm that your records are correct.
If the employee confirms that your records are not correct, you should correct your records, notify the relevant agencies, and verify that the corrected records match those of the relevant agency.
If the employee tells you that your records are correct, you should ask the employee to pursue the matter personally with the relevant agency, such as by visiting a local SSA office, bringing original documents or certified copies required by SSA, which might include documents that prove age, identity, citizenship or alien status, or other relevant documents, such as proof of a name change. You should make such a request of the employee within 30 days of receipt of the no-match letter, and document your request.
In either of the scenarios described in this section 2, a discrepancy will be considered resolved only if the employer verifies with the appropriate agency that the employee’s name matches the number assigned to that name in the SSA’s records, or that the DHS records indicate that the immigration status document or employment authorization document was, in fact, assigned to the employee. You should make a record of the manner, date and time of the verification.
If the discrepancy is not resolved within 90 days of receipt of the no-match letter, and if the employee’s identify and work authorization cannot be verified using a reasonable verification procedure, such as that described above, then you must choose between terminating the employee, or risking a DHS finding that you had constructive knowledge that the employee was an unauthorized alien. Continuing to employ an unauthorized alien after you have such knowledge violates Section 274A(a)(2) of the Immigration and Nationality Act, 8, U.S.C. 1324a(a)(1) (“it is unlawful for a person or other entity, after hiring an alien for employment … to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.”)
Are there any other restrictions that I should consider when complying with these procedures?
Yes. For purposes of verifying employment authorization or identity or both, you cannot rely upon a document which contains the social security number or alien number that is the subject of the no-match letter, nor a receipt for an application for a replacement of such a document, nor any document without a photograph.
Don’t these procedures conflict with laws that prohibit discrimination based on race, ethnicity or national origin?
No. The regulation specifically prohibits reliance on a foreign accent or an employee’s foreign appearance, to infer that an employee may be unlawfully working in the United States. You must apply these procedures uniformly to all employees who have unresolved no-match indicators. The regulation provides that employers who follow the safe harbor procedures set forth in the regulation uniformly and without regard to race, perceived national origin or citizenship status will not be found liable for unlawful discrimination.
If I take these steps, am I protected even if I know the employee is in fact an illegal alien?
No. If you complete the procedure described in section 2 above and the employee is verified, then even if the employee is not actually authorized to work in the United States, you can avoid a claim that you had constructive knowledge of his or her unauthorized status based on receipt of the no-match letter. However, the “safe harbor” provisions do not preclude the DHS from finding that you actually knew that an employee was an unauthorized alien. If you had actual knowledge that one of your employees was an unauthorized alien you cannot avoid liability by following the procedures described above.
1 - This update provides general news about recent legal developments and should not be construed as providing legal advice or legal opinions. This update is a revised version of our September 10, 2007 update on this subject. For specific legal questions, please consult with an attorney.
2 - 8 CFR Part 274a.
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