New Safe Harbor Procedure For Employers Receiving SSA No-Match Letter

Published August 29, 2007

 

Employers looking for clear guidance on how to respond to a "no-match" letter from the Social Security Administration (SSA) now have it. The Department of Homeland Security's (DHS) U.S. Immigration and Customs Enforcement (ICE) published final regulations in the August 15 Federal Register that describe the legal obligations of employers that receive: 1) written notice from the SSA that an employee's name and Social Security number (SSN) do not match agency records (Employer Correction Request, aka no-match letter); or 2) written notice from the DHS that an employee's employment verification forms used for completing Form I-9 do not match agency records (Notice of Suspect Documents). The regulations are effective September 14.

The final rule does not impose on employers any new responsibilities that don't already exist under current law; rather, it provides a clear method for employers to "exercise reasonable care" in addressing SSA no-match letters. Note: Although the DHS issued these regulations, it does not provide guidance on what is a reasonable response to a DHS notice beyond contacting the agency within 30 days of receipt. Until further guidance is issued, follow the instructions in the notice, if any.

Within 30 calendar days of receipt of a no-match letter, check your records to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in your records, or in your communication to the SSA or DHS. If there is such an error, correct your records; inform the relevant agencies; verify that the name and number, as corrected, match agency records — in other words, verify with the relevant agency that the information in your files matches the agency's records; and make a record of the manner, date, and time of the verification.

If the discrepancy is not resolved, promptly request that the employee confirm that your records are correct. If they are correct according to the employee, ask him/her to pursue the matter personally with the relevant agency.

If the employee says that your records are not correct, you have 90 calendar days (from receipt of the no-match letter) to take the actions necessary to correct them; inform the relevant agencies (in accordance with the letter's instructions, if any); and verify the corrected records with the relevant agency.

If the employee says that your records are correct, he/she has 90 days to rectify the error. He/she may visit a local SSA office, bring in documents or certified copies required by the SSA (e.g., documents that prove age, identity, or citizenship or alien status), or mail these documents or certified copies to the SSA, if permitted by the SSA.

If, after taking those steps and the discrepancy is still not resolved, complete a new I-9 form as if the employee were newly hired. You must do this within 93 days of receipt of the no-match letter. That is, the full 90 days to resolve the discrepancy as provided by the final regs, plus an additional three days to complete the new I-9 form.

Tip: Document telephone conversations and retain all SSA or DHS correspondence, computer-generated printouts, e-mails, screen shots, etc., as evidence of your good-faith effort to resolve a discrepancy.

Worried about being held liable for employing an unauthorized worker during the safe-harbor procedure? You may continue to employ the worker until all of the steps of the safe-harbor procedure are completed unless you have actual knowledge that he/she is illegal. Then, you may not continue to employ him/her.

To ensure that you follow the correct steps for completing I-9 forms, take advantage of the tips and tools provided in AHI's Complete I-9 Compliance Kit, which has been updated with the DHS's no-match regulations and legislation passed by the states, which may be more stringent than federal employment verification rules.

 

Related Topic(s): Hiring/IRCA - Immigration Reform and Control Act