I-9 Alert: Social Security No-Match Letters to Return in 2019
As an attorney and self-proclaimed compliance wonk, it always amazes me how much havoc (and confusion) a simple two or three-page “informational” notice from the government can cause. For sure, some types of letters (particularly in the I-9 world) are clearly bad news. Nobody ever wants to receive a Notice of Inspection (i.e., an I-9 audit notice), or really any kind of correspondence at all from Immigration and Customs Enforcement (“ICE”). As we’ve reported many times throughout 2018, ICE has been doing quite a bit of letter-writing this year as the Trump administration continues to break records on the number and breadth of I-9 and worksite related audits and inspections.
But there’s another type of letter that employers (by and large) have not seen in a very long time. Originating from the Social Security Administration (SSA), it’s fairly short, seemingly benign, and often directed at your payroll or tax department. But make no mistake about it, this letter can open a Pandora’s boxful of I-9 compliance issues, with no easy answers or resolutions. Ladies and gentlemen, I bring you the triumphant return (or perhaps re-return) of the Social Security No-Match letter in 2019.
Don’t call it a comeback
Its official name is “Employer Correction Request Notice” but it’s more commonly known as a Social Security No-Match Letter (or just “No-Match Letter” for short). In August, the SSA quietly resumed sending No-Match letters to businesses and third parties who submitted wage and tax statements (Form W-2) that contain name and Social Security number (SSN) combinations that do not match the SSA records. Beginning in the spring of 2019, they will notify each employer with at least one W-2 form where the name and SSN do not match their records. A sample notice can be viewed here.
The sending of No-Match letters has actually been around for quite some time, with several starts and stops along the way. The basic gist behind the process is this: the SSA will send letters to employers when the names or social security numbers listed on an employer’s W-2 forms do not match SSA records. This could happen for a variety of legitimate reasons including a misspelled name or SSN with a transposed number; a change in the worker’s name due to marriage or divorce; incomplete information on a W-4 or W-2; or use of compound names which are not perfectly aligned in the government databases. Of course, mismatches could also be due to the use of false SSNs or SSNs assigned to other people (identify theft).
It’s also worth noting that Title II of the Social Security Act actually requires the SSA to maintain accurate earnings records for covered workers to ensure they post earnings to the correct worker’s account. Therefore, it’s certainly logical (and reasonable) that SSA would want to correct these apparent inconsistencies by notifying employers. What could be wrong with that?
No-Matches and Immigration Compliance
Well, as it turns out, No-Match letters have had a long (and somewhat complicated) relationship with immigration and I-9 compliance. The former Immigration and Naturalization Service (INS) and its successor, ICE, have historically told employers that receipt of one of these seemingly innocuous letters actually creates an affirmative duty to investigate the reason for the discrepancy. The logic behind this stance is clear: ICE does not want employers to ignore what could be telltale signs that an employee is actually not authorized to work. The agency has even warned that failure to follow-up with an employee in certain circumstances could lead to a finding of constructive knowledge of unauthorized employment (e.g., if confronted employee offers no explanation and employer does nothing to resolve the issue).
But the decision to investigate (and act upon) no-match discrepancies is not that cut and dry. For as many HR managers are well aware, there’s an entirely separate government agency (the Immigrant and Employee Rights section (IER) of the Department of Justice) that is tasked with ensuring that employers do not go too far in their I-9 and employment verification duties. With regards to No-Match letters, IER has stated that the mere receipt of a No-Match letter does not standing alone give rise to constructive knowledge on the part of the employer that the employee is unauthorized to work. Doing so may be considered an unfair documentary practice or evidence of discrimination based on citizenship, national original, or immigration status.
What do employers do?
From an SSA perspective, employers are instructed to use SSA’s free Business Services Online (BSO) tool to view the names and SSNs which could not be matched, and work with employees to resolve the error. SSA provides a sample letter to give to employees, while also instructing employers on how errors can be fixed using Form W-2C, Statement of Corrected Income and Tax Amounts. You can navigate to this page for a complete list of instructions.
But what happens if your employee does not respond to the letter or otherwise act to resolve the issue? The No-Match letter template specifically states that it “does not address your employee’s work authorization or immigration status” and further notes that the letter should not be used to “take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual.” And yet, as mentioned above, employers can expect that during an I-9 inspection, ICE may ask to see copies of the No-Match letters which could then be used in enforcement actions against them.
Guidance from IER
Back when they were known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices (or OSC), IER provided a handy set of “do’s and don’ts” with regards to No-Match Letters – which will be particularly useful as employers prepare for the potential onslaught of mismatched names in 2019. While there are still plenty of gray areas through which to navigate, employers should pay special attention to the following:
Initial Receipt of Letter
- Recognize that name/SSN no-matches can result because of simple administrative errors.
- Do NOT assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
Communicating with the employee
- Inform the employee of the no-match notice and ask that they confirm the name/SSN reflected in your personnel records.
- Advise the employee to contact the SSA to correct and/or update their SSA records.
- Give the employee a reasonable period of time to address a reported no-match with the local SSA office. In a separate FAQ, IER notes the following: “[t]here are no Federal statutes or regulations in effect that define a ‘reasonable period of time’ in connection with the resolution of a no-match notice. As a practical matter, a ‘reasonable period of time’ depends on the totality of the circumstances. Of note, in the E-Verify context SSA has the ability to put a tentative nonconfirmation into continuance for up to 120 days. This recognizes that it can sometimes take that long to resolve a discrepancy in SSA’s database.”
- Follow the same procedures for all employees regardless of citizenship status or national origin.
- Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
- Review any document the employee chooses to offer showing resolution of the no-match.
- Submit any employer or employee corrections to the SSA.
- Do NOT attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
- Do NOT require the employee to produce specific I-9 documents to address the no-match.
- Do NOT require the employee to provide a written report of SSA verification (as it may not always be obtainable).
Although the guidance listed above is helpful, employers will ultimately need to formulate their own plans with regards to No-Match letter receipt protocol (especially as it pertains to communication and timelines). As with many areas in the I-9 compliance world, I highly recommend engaging experienced immigration counsel to help you devise a strategy which makes sense for your organization. By working closely with counsel, you can (a) devise a standard procedure for how to respond to a no-match letter; (b) identify any past no-match letters which should be maintained in the event of an ICE audit; and (c) construct a plan to contact employees impacted by the letters.
Now more than ever, employers need to approach immigration compliance from a holistic perspective; completing I-9s and E-Verify correctly and on-time is certainly part of the equation, but there are many other overarching considerations which must also be discussed. In the coming weeks, we’ll be releasing some new documentation to help guide HR departments through this potential labyrinth as the 2019 enforcement season begins to heat up.
In the meantime, if you need more information on Form I-9 compliance, please feel free to contact us here. You can also subscribe directly to this blog (and receive instant email notifications) by entering your email address in the following form.