Ice on Immigration: Feds’ new “get tough” policy searching for the undocumented

Question: I heard that there is a policy the federal government will implement next month regarding names that do not match social security numbers in employment settings. Is this true?

Answer: Yes. In a “get tough” policy, the Department of Homeland Security (DHS) has a new federal regulation regarding “social security no-match” letters that are sent to thousands of employers each year. The Social Security no-match letter is a letter from the Social Security Administration (SSA) that informs an employer that the name and social security number submitted on an Internal Revenue Service (IRS) form W-2 do not match the information registered with the Social Security Administration.

The new rule allows the Immigration and Customs Enforcement (ICE) branch of DHS to use receipt of the no-match letter as evidence that the employer has “constructive knowledge” that an employee is unauthorized to work in the United States. If, however, the employer is shown to be unaware of the illegal status of the employer, he would be granted a “safe harbor” even if the worker is later found to be undocumented. On the other hand, the “safe harbor” would not apply to a situation in which DHS believes the employer had “actual” knowledge it was hiring undocumented workers.

Pursuant to the new rule, the employer would receive a “no match” letter from the SSA, along with a letter from ICE informing the employer on how to respond to the “no match” letter. If an employer receives a “no-match” letter, the employer should not automatically assume that the mismatch is the result of any wrongdoing on the part of the employee. Furthermore, an employer who takes action against an employee based on nothing more than a “no-match” letter may be violating the law. Nonetheless, the new requires the employer to check its records within 30 days to ensure that the discrepancy or “no-match” is not a typographical or clerical error. If there is an error, the employer must correct the information and verify the corrected data with the SSA or the DHS. DHS considers that a no-match has been resolved only when the employer verifies with SSA or DHS that the information corresponds with the proper agency’s records.

If the discrepancy is not resolved within 90 days, the employer must re-verify the individual’s work authorization by completing a new DHS I-9 employment eligibility verification form without using the documents that were the subject of the “no match” letter. If the employee is unable to resolve the no-match, the employer may choose to terminate the employee or run the risk that DHS will determine that the employer had “constructive knowledge” that the employee is unauthorized to work in the United States.

Editor’s note: A federal judge has granted a temporary restraining order prohibiting the Social Security Administration from mailing no-match notices to 140,000 employers. Federal District Judge Mexine Chesney set an October 1 date for a hearing on the case brought by the AFL-CIO alleging the no-match letters violate workers’ rights.