No-Match letters resume

The Social Security Administration (SSA) has resumed sending out No-Match letters to employers, according to law firm Fisher & Phillips LLP.

The resumption ends a break that started when a court blocked the Department of Homeland Security’s 2007 No-Match regulation (since rescinded). SSA’s new letter says that the recipient is not required to respond, and that the letter alone should not be the basis for taking any adverse action against the employee listed, according to the law firm.

If you receive a No-Match letter, SSA instructs you to:
• Check your records to see if there is a discrepancy in the records submitted to SSA
• Ask the employee to check his or her records to determine if the information was accurately recorded/reported
• Instruct the employee to contact SSA to resolve any discrepancy
• Provide the employee a reasonable amount of time to resolve the discrepancy
• Document your efforts to resolve the matter

SSA, Immigration and Customs Enforcement and the Office of Special Counsel provide no additional guidance for an employer’s obligations upon receipt of a No-Match letter. ICE Notices of Inspection for I-9 audits generally request copies of any correspondence received from SSA, including No-Match letters. It is unclear whether merely documenting an employee’s inability to resolve a discrepancy without taking further action will satisfy ICE in the event of an I-9 audit, according to the law firm.

The rescinded No-Match regulation outlined “safe harbor” procedures to demonstrate that an employer had acted reasonably to a No-Match letter, including allowing the employee 90 days within which to resolve the discrepancy and complete a new I-9 form with updated documents, according to the law firm.

Fisher & Phillips recommended that ag employers develop standard policies and procedures to address issues raised in SSA No-Match letters, and implement them in a non-discriminatory way.