The “Social Security No Match Letter” regulation directs employers to take certain steps when they receive notice from the Social Security Administration (“SSA”) that an employee’s name and social security number do not match, and to potentially terminate them if the discrepancy cannot be resolved within a short time-frame. Many lawful U.S. Citizens and those legally allowed to work in our country will be caught up in Social Security no-match letters due to the poor quality of the SSA database. Employers will be overwhelmed with paper work as the government seeks to make employers responsible for the decades old administrative problems. 

This is not a positive way to enlist the business community in working to fix the problems that the government created. The regulation also jeopardizes vital U.S. industries and the U.S. economy as a whole by needlessly creating uncertainties, disruptions, and dislocations throughout broad swaths of the workforce. Moreover, the regulation would foster anti-Latino and anti-immigrant discrimination and would rely upon a database—Social Security—that is not an effective tool in worksite immigration enforcement.

 New Significance and Probative Value of No-Match Letter 

The Final Rule changes the legal landscape for employers and employees in at least three ways. First, the Final Rule alters the significance and probative value of receipt of a Social Security Administration (“SSA”) no-match letter. Before the Final Rule, SSA’s no-match letter expressly stated that receipt of such a letter made no statement about an employee’s immigration status and therefore, had no probative value with respect to an employee’s immigration status. That letter stated:

 “IMPORTANT: This letter does not imply that you or your employee intentionally gave the government wrong information about the employee’s name or Social Security number. Nor does it make any statement about an employee’s immigration status.” 

SSA’s view that a no-match letter had no probative significance was based on its recognition that discrepancies in its database are common and, in many cases, innocent. A report by the Government Accountability Office (“GAO”) on SSA's Earnings Suspense File (“ESF”) concluded that SSA’s database “[c]ontains information about many U.S. citizens as well as non-citizens” and that “the overall percentage of unauthorized workers is unknown.” 

When SSA ultimately has been able to resolve data discrepancies, GAO reported that “a significant number of earnings reports in the ESF still belong to U.S. citizens and work-authorized non-citizens.” The Final Rule changes this by imbuing a no-match letter with evidentiary significance that it did not possess in the past and not only that, it changes the significance of a no-match from “unknown” to “frequently” indicating fraud. Indeed, following the Final Rule, DHS has stated that receipt of such a letter can put an employer on notice of a potential unauthorized work situation. This is a significant change.  

New Immigration Related Duty on Employers 

Second, the Final Rule imposes an immigration-related duty on employers to investigate that previously did not exist. Prior to the Final Rule, DHS’ predecessor advised that receipt of an SSA letter did not impose any obligation on the part of the employer to do anything. Reconciling no matches “is not required by the INA (nor is it prohibited by it) . . .” Under the Final Rule, however, employers now have an obligation to investigate. The DHS Letter expressly so states: 

Q: Can I simply disregard the letter from SSA? 
A: No. You have received official notification of a problem that may have significant legal consequences for you and your employees. If you elect to disregard the notice you have received and if it is determined that some employees listed in the enclosed letter were not authorized to work, the Department of Homeland Security (DHS) could determine that you have violated the law by knowingly continuing to employ unauthorized persons. This could lead to civil and criminal sanctions.  

This is indeed a change. 

New Standard of Care on Employers 

Third, to complement this new duty, the Final Rule imposes a new standard of care on employers. This rule defines what it perceives to be reasonable behavior to discharge this new duty. 

The structure is analogous to the structure of any new tort, namely duty, standard of care and breach, except this one carries with it criminal ramifications. The government defines “reasonable conduct” as seeking to reconcile a no-match letter within ninety days, and if unable to do that, requiring that an employee re-verify his or her work status within three days. If not resolved after ninety-three days, termination is required. There were no such time-limit requirements, no re-verification requirements, and no termination requirements for an unresolved no-match letter before the Final Rule.