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Immigration Update

April Showers Bring May Social Security No-Match Letters
May 4, 2011

The Social Security Administration (SSA) recently announced that it is resuming sending "no match" letters advising employers when an employee is using a social security number that does not match SSA records for the 2010 tax year. SSA has not sent out "no-match" letters to employers since the end of the 2006 tax year correspondence. In 2007 Immigration and Customs Enforcement "ICE" attempted to add guidance to these letters explaining to employers how to treat the letters to qualify for "safe harbors" for compliance in the case of an audit or investigation. Several parties challenged the practice in court and ICE was immediately enjoined from sending out the letters with their guidance attached. Ultimately the ICE safe harbor guidance was rescinded and attempts to revise the wording and include it with the "no match letters" was abandoned along with any attempts to send employer "no match" letters between 2006 and 2011.

Differences between the 2006 "No Match" Letter and the 2011 "No Match" Letter

The new version of the SSA employer letter omits the ICE "safe harbors" insert that cautioned the employer that failure to act upon receipt of the SSA no-match letter could be construed as constructive knowledge of knowingly continuing to employ unauthorized workers, based on the totality of the circumstances. The 2011 SSA letters are different from the traditional SSA employer no-match letters,  (also known as Code V letters), which SSA sent to employers from 1993 to 2005. Those letters listed multiple employee social security numbers and asked employers to provide updated information. The new employer version of the SSA letter lists only one employee per letter, cites The Privacy Act, and cautions that failure to complete the letter prevents SSA from crediting the employee with the correct wages. It further addition to the 2011 letter states, “We may give this information to the Internal Revenue Service for tax administration purposes or to the Department of Justice for investigating and prosecuting violations of the Social Security Act.”

Just like the previous "No Match" letters, the 2011 letter advises that there may be many reasons for the no-match letter, such as typographical errors, name changes, and incomplete information. It also states: “The letter does not imply that you or your employee intentionally provided incorrect information about the employee’s name or SSN. It is not a basis, in and of itself, for you to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual.” As such, employees listed in the letter should not be immediately terminated or placed on unpaid leave while they resolve the inconsistencies in their SSA record. However, failure to address the inconsistencies with the employee can result in state or federal investigations, fines, and be used as evidence of constructive knowledge of hiring unauthorized aliens under the "totality of the circumstances" test in the case of an ICE I-9 audit or investigation.

Thus, Employers who receive this new "No Match" letters find themselves thrust into a legal quicksand, where failing to take action to resolve the inconsistencies can create liability, while acting too aggressively with employees to verify their SSA record and employment authorization can likewise trigger potential liability. As such, each employer needs to view the specific facts of the person's situation and all information known, to determine the proper steps to address the letter. Once confirming with the employee their records are correct and reviewing their I-9 information, other steps may or may not be warranted. If you receive one of these letters regarding your employees, we recommend you communicate with your MVA Immigration Group Contact to determine the proper steps to take to address the SSA "No Match" letter.

This electronic newsletter includes information about legal issues and legal developments. Such material is for informational purposes only and is not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact your attorney for advice on specific legal problems.