The SSA began its practice of sending no-match letters in 1993. However, the SSA stopped sending no-match letters in 2012. Now that the SSA has reinstated its practice of sending no-match letters, and based on the current presidential administration’s pledge to increase workplace immigration enforcement, employers should consider it a top priority to contact an attorney to help if they receive such a letter. Although discrepancies leading the SSA to find a “no-match” can arise from ordinary events, such as a marital name change, unreported name changes, typographical errors, and incomplete or inaccurate employer records, such inconsistencies may be indicative of an employee using a false identity.
Employers must know how to appropriately respond to a no-match letter. For example, employers may violate the Immigration and Nationality Act’s anti-discrimination provisions should the employer request unnecessary or excessive documentation from employees relating to the verification of an employee’s eligibility to work in the U.S. An employer may also be liable for an improper action such as firing or suspending an employee because he or she was flagged in a no-match letter. It is important for employers to know that an employer may not require employees to physically show their Social Security card for purposes of wage reporting. Employers should also be wary of how they respond to a no-match letter, since employers may be vulnerable to lawsuits based on discrimination for an over-encompassing response. Hence, employers should adopt a written policy outlining the procedure for responding to no-match letters and the process to maintain records of the responses.
While the SSA recognizes that a “no-match” is not a conclusive finding that an employee is not authorized to work in the U.S., no-match letters alert employers of a possible issue. Should an employer receive a no-match letter, it would behoove the company to consider the ramifications of failing to respond to the letter. In the case of an I-9 audit by Immigration and Customs Enforcement (ICE), employers will be asked to produce any records relating to the receipt of a no-match letter and evidence as to how the employer responded. ICE will consider a response addressing the no-match issues as evidence of good faith compliance in the event of an audit or raid.
How can employers take proactive measures to protect themselves as a result of the return of no-match letters? Employers should first check their records to ensure they have accurately entered the employee-provided information. Then, should they find a discrepancy, ask the employee to verify their Social Security number, spelling of their name, or if they changed their name. This will enable employers to proactively address a no-match letter should they receive one. For steps beyond this, legal counsel should be sought.