Social Security "No Match" Letters
DHS Quietly Abandons Its Proposed Rules in Favor of
E-Verify

By Sheri McWhorter

In our January/February 2009 issue, we wrote of repeated attempts by U.S. Department of Homeland Security (DHS) to implement regulations (the “2007 and 2008 No Match Rules”) which would have placed onerous burdens on employers receiving “no match” letters from the Social Security Administration (SSA).  Effective November 6, 2009, the DHS abandoned the 2007 and 2008 No Match Rules, which were blocked by court order shortly after they were issued and never took effect. 

Social Security “no match” letters are the much maligned method used by the federal government to notify employers that an employee’s name or Social Security number may not match the records in the SSA database.  Under the 2007 and 2008 No Match Rules proposed by DHS, an employer receiving a “no match” letter from the SSA was deemed to have “constructive notice” something was wrong with an employee’s employment eligibility documentation.  The rules placed the burden on employers to take required steps to correct the mismatch, and employers who ignored the “no match” letters could be prosecuted for violation of the federal immigration laws.

In its press release announcing plans to rescind the 2007 and 2008 No Match Rules, DHS acknowledged that among the many problems associated with the “no match” letters is the letters often inform an employer many months or even a year later a particular employee’s name and Social Security number provided in the employer’s W-2 earnings report doesn’t match SSA records.  Moreover, most of the mismatches are innocent enough, frequently caused by simple typographical errors or unreported name changes such as those due to marriage.

In abandoning the 2007 and 2008 No Match Rules, the DHS has decided to change its enforcement priorities and focus its enforcement efforts instead on compliance through the use of the E-Verify system, and increased Form I-9 Compliance Audits (as discussed in our last issue). 

Until recently, participation in the E-Verify system has been purely voluntary for Florida employers.  Use of the E-Verify system became mandatory on September 8, 2009 for all employers doing business with the federal government.  E-Verify is an Internet-based system operated by DHS that electronically compares information from the employee’s Form I-9 (Employment Eligibility Verification Form) against records contained in various federal government databases (primarily against the SSA database, the source of the “no match’“ letters, although other federal databases have been added) to verify eligibility for employment.  In Florida, as of September 8, 2009, E-Verify participation became mandatory only if and when an employer is awarded a federal contract or subcontract that requires participation in E-Verify as a term of the contract. 

Although DHS has rescinded the 2007 and 2008 No Match Rules, the agency maintains its view that an employer’s receipt of and response to a “no match” letter, in the totality of the circumstances, may support a finding of “constructive knowledge” an employee is not legally authorized to work in the U.S., and may be evidence of a violation of federal immigration law. DHS argues a “reasonable employer” receiving a “no match” letter would be prudent to check its own records for errors, inform the employee of the letter, ask the employee to review the information, and allow the employee a reasonable period of time to resolve the mismatch with the SSA.

It remains unclear as to whether the SSA will continue to send its “no match” letters, and if so, whether the letters will go out to both employers and employees.  DHS acknowledges such a decision is to be made by the SSA, according to its own purposes, including making employers and employees aware of discrepancies in their filings and encouraging corrective action to ensure employees’ earnings are properly credited.  

DHS’ assertion it has not changed its position on the merits of the 2007 and 2008 Rules notwithstanding, with the permanent rescission of the proposed Rules, employers will no longer be faced with the heavy burden of having to resolve mismatches in the SSA database under penalty of being deemed to have constructive knowledge of employing illegal workers. 

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegalSolutionsSM, 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.  For more information, contact Ms. McWhorter at 813.321.7383 or 727.388.5383, or visit WorkplaceLegalSolutions on the web at www.workplacelegalsolutions.com.