The End of an I-9 Dilemma: SSA Discontinues the Sending of No-Match Letters to Employers
Last month, the Social Security Administration (SSA) quietly announced they are no longer sending Social Security No-Match Letters to employers – a small bit of welcome news for HR and compliance managers who often struggle with the very thorny consequences of dealing with these notices.
SSA No-Match letters, also known as Educational Correspondence (EDCOR) notices, made a big comeback in March of 2019 when the agency resumed sending the letters to employers having at least one name and SSN combination submitted on a W-2 that did not match their records. According to the Chicago Sun Times, SSA sent 803,000 notices in 2019 and 791,000 notices in 2020.
From an SSA perspective, the stated purpose of the letter was rather benign – to notify the employer of the discrepancy and ensure accuracy of the employee’s earnings record. But no-match letters have had a long and complicated relationship with immigration and I-9 compliance, due in large part to their use in enforcement actions.
Show me your (no-match) papers
For many years, the former Immigration and Naturalization Service (INS) and its successor, Immigration and Customs Enforcement (ICE) would routinely ask employers for copies of no-match letters during an I-9 audit, and in unresolved cases, use that information to build a charge of knowingly hiring an unauthorized worker.
The problem of course is that a social security no-match could arise 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.
Mismatches could also be due to the use of false SSNs or SSNs assigned to other people (identify theft), which is the reason ICE has been so keenly interested in them when auditing employers.
Rock and a hard place
But from an HR perspective, investigating no-match discrepancies was fraught with peril, due in large part to the precarious balancing act that all employers face when it comes to managing their I-9 program. The regulations make it unlawful to hire or continue to employ an individual knowing that the person is (or has become) an unauthorized worker.
But the real kicker is that “knowing” includes not only actual knowledge but also knowledge which “may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” (8 C.F.R. § 274a.1(l)(1)). This so-called “constructive knowledge” standard has been defined and summarized as a deliberate failure to investigate suspicious circumstances, which thereby imputes knowledge.
In 2008, the U.S. Court of Appeals for the Ninth Circuit held in Aramark Facility Services v. Service Employees International Union that the receipt of a no-match letter does not by itself serve as constructive knowledge that an individual is unauthorized to work. In reaching its decision, the court noted that no-match letters are not intended by the SSA to contain “positive information” of immigration status, and could be triggered by numerous reasons other than fraudulent documents, including various errors in SSA’s database.
Recent versions of the letter also noted that employers are prohibited from taking adverse action against an employee, such as laying off, suspending, firing, or discriminating against the individual. And yet, according to the Chicago Sun Times, many immigrant workers were wrongly terminated during the past couple of years because of these no-match letters. Which is not a surprise, considering how fragmented the guidance has been on resolving these issues.
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. But what happens if your employee does not respond to the letter or otherwise act to resolve the issue?
In 2007, ICE issued a proposed regulation which would have mandated employers take a series of steps to mitigate the possibility of unauthorized employment and imposed a 90-day deadline for employees to resolve the issue. The regulation never went into effect due to litigation and was eventually rescinded in 2009. Nevertheless, ICE still considers an employer’s receipt of and failure to address a no-match letter to be possible evidence of the knowing employment of an undocumented worker, particularly if the employer takes no action.
The former Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) also issued guidance on responding to no-match letters through a handy set of “do’s and don’ts” that is still posted on their website. Although the guidance was helpful, employers ultimately needed to formulate their own plans with regards to no-match letter receipt protocol, especially as it pertains to communication and timelines.
The Timely Demise of the SSA No-Match Letter
Which brings us back to the present, and the good news from the SSA in April 2021. According to their website, the agency is halting the issuance of no-match letters “to focus on making it a better, easier, more convenient experience for employers to report wages electronically. We will also seek out new opportunities to educate employers.”
While it’s unclear whether these new educational opportunities will involve informing employers of a mismatch, at least for the time being, HR and compliance teams can breathe a sigh of relief that the troublesome no-match letters are now a thing of the past (yet again).