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No-Match Letters Quietly Suspended

Feb 13, 2012

The Social Security Administration has not indicated whether or not it will resume sending no-match letters in spring 2012. Employers must stay alert for changes.

 
Anthony Raimondo 2010 06 photoBy Anthony P. Raimondo
 
Quietly, the Social Security Administration (SSA) has suspended sending no-match letters to employers. No-match letters inform an employer that an employee’s name and Social Security number do not match the information in the SSA database. In recent years, the Department of Homeland Security (DHS) has sought to use employers’ response (or failure to respond) to no-match letters as evidence that the employer knew or should have known of an employee’s lack of legal status.
 
Nonetheless, employers who received no-match letters in 2007 must be sure to follow up on them. After verifying that there was no error in the employer’s records, the employee must be directed to resolve the issue with SSA, and should be given a time frame of 90 to 120 days to do so. In addition, if the problem Social Security Number (SSN) was used to verify the employee’s status on the I-9 form, then the I-9 form must be re-verified without the problem SSN.
 
There remain additional issues that can arise with employee SSNs. It is very common for employers to receive garnishments or other notices in the name of an individual who is not an employee, but with a SSN that matches an employee. In such cases, the employer cannot assume that their employee is using a false SSN; it is equally plausible that the employee has been the victim of identity theft. In such cases, the employer should write to the agency that contacted them and notify them that they cannot confirm whether the employee is the person the agency is looking for. The employee should be notified of the incident in writing, and should be directed to resolve it and report back any information that needs to be updated.
 
DHS continues to aggressively enforce immigration laws against employers. In Texas, two businesses were forced to forfeit $2 million in revenue derived from products produced with a workforce that had a high percentage of undocumented workers. The key evidence included failures to follow up on no-match letters, poor quality I-9 forms and acceptance of identification documents that were obviously false. In San Diego, a baker’s owner and manager were convicted of felonies. The baker forfeited almost $110,000 in revenue and paid over $275,000 in fines. The company routinely rehired people with unresolved no-match letters, and was careless in following the I-9 process. 
 
It remains essential for the I-9 forms to be absolutely perfect in order to avoid immigration violations. Employer should carefully look over documents, and make sure not to accept documents that have obvious issues, such as misspelled agency names or stamps stating “Novelty Item” (both of these issues occurred in the Texas cases). SSA has not indicated whether or not it will resume sending no-match letters in spring 2012, and employers must be alert for change at any time. Employers can protect themselves from immigration violations but must be alert and proactive to ensure compliance. 
 
The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at McCormick Barstow LLP in Fresno, at (559)433-1300.
 
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