Proposed Final Rule Changes for No-Match Letters

Friday, October 5, 2007
Contributed by: Charles A. Mallard and Nick Nevarez Jr.

Effective September 14, 2007, the Department of Homeland Security ("DHS") and the Immigration Customs Enforcement ("ICE") will follow new rules concerning "Employer Correction Requests," also known as "No-Match Letters."

There are two events that trigger the application of the new rules. The first event is referred to as a No-Match Letter. In this event, the employer receives a written notice from the Social Security Administration ("SSA") stating that the combination of name and social security number submitted to SSA for an employee does not match agency records. The second event is referred to as a Wrongful Assignment Letter. Here, the employer receives written notice from DHS that the immigration status or employment-authorization documentation presented or referenced by the employee in completing Form I-9 ("I-9") was not assigned to the employee according to DHS records.

In addition, the new rules outline a series of "safe-harbor" procedures. Employers can follow these procedures in response to a No-Match Letter or a Wrongful Assignment Letter from DHS. These procedures are located at 8 C.F.R. sec. 274a.1(l)(2)(i) (2007).

Safe Harbor Procedures:

The following procedures are very important to note. Should an employer receive either one of the two letters, then the employer should follow the outlined procedures. If the employer chooses to follow the safe harbor procedures, then the receipt of the letter will not be used as evidence by DHS of constructive knowledge.

Should an employer have constructive knowledge, then the employer will be in violation of the Immigration and Nationality Act of "knowingly" employing an unauthorized alien.

A. No-Match Letter

If an employer receives a No-Match Letter, there are safe harbor procedures it should follow.

First, the employer must check its records to determine whether the discrepancy results from a typographical, transcription, or similar clerical error.

  • If this is the case, the employer must correct the error and inform SSA of the correct information (in accordance with the written notice's instructions, if any).
  • Also, the employer must verify with SSA that the employee's name and social security number, as corrected, match SSA records.
  • The employer should make a record of the manner, date, and time of this verification. The employer should then store the record with the employee's I-9.
  • The employer may update the employee's I-9 or complete a new I-9 (and retain the original I-9), but the employer should not perform a new I-9 verification.
  • The employer has thirty days to complete these steps from receiving the written notice.

Second, if the employer determines the discrepancy is not due to an error in its own records, it must promptly request that the employee confirm that the name and social security number in the employer's records are correct. If the employee states the employer's records are incorrect, the employer must correct, inform, verify, and make a record as set forth above. In other words, follow the same steps as if there were a typographical, transcription, or similar clerical error. If the employee confirms the employer's records are correct:

  • The employer must promptly request that the employee resolve the discrepancy with SSA (in accordance with the written notice's instructions, if any).
  • The employer must advise the employee of the date that the employer received the written notice from SSA.
  • The employer must advise the employee to resolve the discrepancy with SSA within ninety days of the date the employer received the written notice from SSA.

Third, if the employer is unable to verify with SSA within ninety days of receiving the written notice that the employee's name and social security number match SSA's records, the employer must again verify the employee's employment authorization and identity within an additional three days by following a verification procedure. Under that verification procedure, the employer completes a new I-9 for the employee, using the same procedures as if the employee were newly hired, and the employer must retain the new I-9 with the prior I-9, except that:

  • The employee must complete Section 1 ("Employee Information and Verification") and the employer must complete Section 2 ("Employer Review and Verification") of the new I-9 within ninety-three days of the employer's receipt of the written notice.
  • The employer must not accept any document referenced in any written notice from DHS, any document that contains a disputed social security number or alien number referenced in any written notice from SSA or DHS, or any receipt for an application for a replacement of such document to establish employment authorization or identity or both; and
  • The employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization.

B. Wrongful Assignment Letter

If an employer receives a Wrongful Assignment Letter, there are safe harbor provisions it should follow.

First, the employer must contact the local DHS office (in accordance with the written notice's instructions, if any) and attempt to resolve the question raised by DHS. The employer must complete this step within thirty days of receiving the written notice.

Second, if the employer is unable to verify with DHS within ninety days of receiving the written notice that the immigration status document or employment authorization document is assigned to the employee, the employer must again verify the employee's employment authorization and identity within an additional three days by following a verification procedure. Under this verification procedure, the employer completes a new I-9 for the employee, using the same procedures as if the employee were newly hired, and the employer must retain the new I-9 with the prior I-9, except that:

  • The employee must complete Section 1 ("Employee Information and Verification") and the employer must complete Section 2 ("Employer Review and Verification") of the new I-9 within ninety-three days of the employer's receipt of the written notice.
  • The employer must not accept any document referenced in any written notice from the DHS, any document that contains a disputed social security number or alien number referenced in any written notice from SSA or DHS, or any receipt for an application for a replacement of such document to establish employment authorization or identity or both; and
  • The employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization.

Non-Discrimination Provision:

The non-discrimination provision is very important for the employer. To begin with, the provision applies to both No-Match Letters and Wrongful Assignment Letters. Next, employers should follow the provisions set out by the new rule in order to avoid a discrimination claim by an employee. In addition, employers should follow the same procedure for all employees. As stated in the regulations, "knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent." 8 C.F.R. sec. 274a.1(l)(2)(i) (2007).

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.