Department of Homeland Security and Social Security
The Match Game

By Sheri D. McWhorter, JD, SPHR
Published: January / February 2009

On October 23, 2008, in yet another attempt by the U.S. Department of Homeland Security (DHS) to “get it right,” the DHS released a final supplemental set of regulations for procedures employers must follow when they receive “no match” letters from the Social Security Administration (SSA). “No match” letters are the much maligned method used by government to notify employers that an employee’s name or social security number may not match the records in the SSA database, or may be otherwise false or misleading. The DHS regulations reversed the federal government’s longstanding position that SSA “no match” letters cannot, by themselves, be construed to place employers on notice that employees are not legally authorized to work in the U.S. Released by DHS in August 2007, the original regulations were set to take effect in September 2007, but were blocked by a preliminary injunction issued by Judge Charles R. Breyer of the U.S. District Court for Northern California, which also delayed SSA’s planned mass mailing of 140,000 “no match” letters. The court’s decision presented DHS with two options – either go back to the drawing board and revise the regulations to correct the deficiencies that led to the injunction, or fight the district court’s decision. The DHS ultimately chose to go back to the drawing board, and the newly released final set of supplemental regulations are the result.

“No match” letters are sent by SSA to employers with employees whose Social Security numbers do not match other government records. According to DHS, a “no match” letter from SSA is a sign to the employer that something is wrong with an employee’s documentation. The problem may be something as simple as the fact that the employee has married and failed to update his last name with SSA. On the other hand, the problem may be more serious, such as where an employer has hired a worker who is using a fake social security number or a fake name, and is likely not legally authorized to work in the U.S. The DHS regulations put the burden on employers to take required steps to correct the mismatch. DHS has taken the position that employers will be in violation of federal immigration law and face civil and criminal sanctions if they ignore the “no match” letters and fail to take corrective steps within 90 days. If businesses follow the safe harbor procedures prescribed by the rules, says DHS, the U.S. Immigration and Customs Enforcement will not use receipt of SSA “no match” letters as evidence that employers have violated federal immigration law, and employers supposedly cannot be sued under the Immigration Reform Control Act (IRCA) for national origin discrimination.

Now that DHS has issued its final supplemental set of revised regulations on the “no match” letters, which will be published in the Federal Register in the near future, the agency also plans to notify the court of the changes to the rule, and ask the court to lift the injunction and allow DHS to immediately implement the new rules. According to DHS, once the rules are in effect, businesses will have a clear roadmap to follow when they receive SSA “no match” letters. Employers will be provided a period of time to address the “no match” discrepancy with the affected employee. If there is an innocent explanation, such as where the employee recently married and needs to submit a name change to SSA, then that should be done. If there is not such an innocent explanation, such as where a worker is using a fake social security number or fake documentation and is not legally authorized to work in the U.S., then the employer will be required to follow certain prescribed steps which will ultimately lead to the termination of employment for that worker.

Employers should familiarize themselves once again with the required SSA “no match” action steps required by the DHS regulations and have procedures in place to resolve the “no match” letters consistently and expeditiously. Otherwise, employers who receive and fail to resolve “no match” letters may be targeted for an investigation by the U.S. Immigration and Customs Enforcement, and company officials may be subject to criminal penalties including, not just fines, but also possible prison time. Employers may take proactive steps to avoid “no match” letters for newly hired workers only by calling the SSA at (800) 772-1213 for each new employee and verifying the worker’s SSN. It is important that companies not take any adverse action based upon an unresolved “no match” letter without first consulting employment counsel.

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is the President and Managing Shareholder of WorkplaceLegal SolutionsSM, Law Offices of Sheri D. McWhorter, P.A. With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area.