Final rule on ‘no match’ letters,
but ...

(Sept. 26. 2007) The Department of Homeland Security has issued final regulations outlining what employers must do if they receive a “no match” letter from the Social Security Administration (SSA), but a federal court has at least temporarily blocked those new rules from taking effect.

No-match letters alert employers that an employee’s name and Social Security number provided on a W-2 form do not match the agency’s records.

Under the new rules, the SSA letter would be accompanied by a letter from Homeland Security telling employers how to respond in order to comply with U.S. immigration laws. An employer would have to:

• Check records within 30 days to make sure the mismatch is not the result of a record-keeping mistake on the employer’s part.
• If there is no clerical mistake, ask the employee to confirm the accuracy of the records or to contact SSA to correct the problem.
• If the no-match issue cannot be resolved within 90 days, complete a new I-9 form using new documentation from the employee that shows authorization to work
• As a last resort, terminate the employee if the previous steps did not resolve the issue.

Employers making a good-faith effort to follow these steps would have a “safe harbor” against liability for employing unauthorized workers. However, employers who fail to fire workers who are unable or unwilling to resolve the discrepancies would face stiff penalties.

Opposition to the rule from labor unions led a U.S. District Court to grant a restraining order prohibiting letters containing the new rules from going out and prohibiting Immigration and Customs Enforcement from seeking sanctions. The court has set the next hearing on the matter for Oct. 1.