Beginning in 2019, the Social Security Administration (SSA) will resume sending “no-match” letters to employers when information submitted on tax forms does not match SSA records. Typically, the name and social security number reported by a worker on Form W-4 does not match the information in SSA databases. The practice was ended by the Obama administration in 2012, the same year the Deferred Action for Childhood Arrivals (DACA) program was launched.
Before 2012, the longstanding practice of sending SSA no-match letters was put on hold between October 10, 2007 and April 6, 2011, after a federal judge in California issued an injunction preventing the Department of Homeland Security from implementing a proposed rule that would have required employers to fire employees who did not resolve discrepancies within 90 days and hold employers liable, under a theory of constructive knowledge, for the continued employment of an unauthorized alien if the employer did not respond to a no match letter.
This is political football. Where one person or administration sees a method of immigration law enforcement by rooting out individuals unauthorized to work in the United States, others see a trap for U.S. citizens whose jobs will be put in jeopardy because of a SSA database riddled with innocent inaccuracies caused by clerical mistakes and the like. While it is clear some things should and should not be done in response to receiving a no match letter from the SSA, it is less than clear what an employer should do when an employee ultimately is unable to resolve the discrepancy by providing a matching social security number.
Employers should not use the receipt of a no-match letter to terminate, suspend, or take other adverse action against an employee. An employer cannot assume the no-match notice means the employee is an illegal immigrant or lacks authority to work. There are many other potential reasons for a no-match. At the same time, an employer should not ignore a no-match letter. Steps must be taken to confirm there is a discrepancy and to allow the employee a reasonable amount of time to correct the discrepancy before taking any action, if at all. What is a reasonable amount of time? There is no statute or regulation in effect that answers that question, but the Department of Justice (DOJ) has suggested it could be up to 120 days.
Here is a link to the DOJ’s current Employer “Dos and Don’ts” upon receipt of a no-match letter: https://www.justice.gov/sites/default/files/crt/legacy/2014/12/04/Employers.pdf. We will have to wait and see whether new or additional guidance is issued.