On October 23, 2008, the Department of Homeland Security (DHS) published its final version of regulations that instruct employers how to deal with a Social Security Administration (SSA) “Employer Correction Request Letter” – commonly known as a No-Match letter.
By sending a No-Match letter, the government places an employer on notice that it may have an illegal alien on the payroll and that the employer may be prosecuted if it does not take reasonable steps to determine if that employee is illegal. These regulations outline what reasonable steps an employer should take to make that determination.
As you are aware, these regulations were first issued in August of 2007 but, shortly thereafter, a lawsuit was filed in federal court claiming the regulations were invalid. The judge agreed with the plaintiffs in that case and he prohibited the use of the regulations until certain issues were resolved.
In an effort to fix the problems, DHS spent considerable time reworking the rules and issued a new set of regulations last March. Last Thursday, the rules were finalized and published by DHS.
Though DHS has issued its final version of the regulations, they cannot be used until the federal court approves them. Therefore, No-Match letters cannot be sent until the federal court grants that approval.
As of today, it is unclear how the court will rule. When a decision is handed down, NCA will immediately communicate that result to our members. Until then, it is prudent for all NCA members to re-familiarize themselves with the steps to be taken should your club receive a SSA No-Match letter. Those steps are:
- Promptly review the employee’s employment documents to determine whether there is a typographical, transcription or similar clerical error on the payroll information or in any communication with SSA. If there is such an error, you should make the necessary changes with SSA. You will have thirty (30) calendar days from the date you received the No-Match letter to complete this process.
- If there was no error in your records, then you must ask the employee to confirm the accuracy of the information he gave when he was hired. If the employee finds the problem, he must submit the change to you and then you will make the necessary changes with SSA. You must notify the employee of the date you received the No-Match letter and advise the employee that he will have ninety (90) calendar days from that date to complete this process.
- If the employee determines that the information he gave is correct, then you must ask the employee to pursue the matter with SSA. This means that the employee will need to go to a local SSA field office and provide those officials with additional information. You must notify the employee of the date you received the No-Match letter and advise the employee that he will have ninety (90) calendar days from that date to complete this process.
- If the discrepancy is not resolved within the full ninety (90) day period, you have three (3) additional calendar days within which to complete a new Form I-9 and verify that the employee is authorized to work in the U.S. just as if the employee were newly hired. Naturally, no document containing the employee’s Social Security number may be used and a document with a photograph must be used. Thus, you will have ninety-three (93) calendar days from the date you receive the No-Match letter to complete this entire process.
If the new I-9 information does not resolve the issue, then you must terminate the employee or risk being prosecuted for continuing to employ an individual who may be illegal.
The new regulations also discuss what to do if you receive a DHS “Notice of Suspect Documents Letter.” This letter functions the same as a SSA No-Match letter. Should you receive one, you should:
- Promptly contacts the local DHS office and try to resolve the issue. The notice will provide additional information regarding this process. This must be done within thirty (30) calendar days from the date of receipt of the notice.
- If you and DHS cannot verify the work eligibility status of the employee within ninety (90) calendar days from receiving the notice, then you will have three (3) additional calendar days within which to complete a new Form I-9 (with the same restrictions as the SSA No-Match rules).
- If the new I-9 information does not resolve the issue, then you must terminate the employee or risk being prosecuted for continuing to employ an individual who may be illegal.
Upon satisfactory resolution of either a SSA No-Match letter or DHS notice letter, you must place the government’s documentation verifying that the employee is legal and authorized to work in the U.S. in the employee’s personnel file and maintain it along with all other employment documents.
As you work through the process, you should document your efforts by printing computer screens to record your actions with SSA and DHS. By retaining emails, computer generated printouts and any other correspondence, you will have a paper trail to help prove that you followed these new regulations as required.
By following these steps, you will be granted protection from prosecution for hiring or continuing to employ an illegal worker even if the employee is later determined to be illegal. If you fail to follow these steps, you could be subject to such prosecution. Of course, if you have actual knowledge that an employee is illegal, nothing you do will protect you from prosecution.