How to Avoid Liability after Receiving a “No-Match” Letter

DHS announces final “No-Match” letter requirements

The Department of Homeland Security (DHS) has recently released its final regulations concerning employers’ responsibilities when a “No-Match” letter is received.  After an employer receives a “No-Match” letter from the SSA, or a letter regarding employment verification from the DHS, “reasonable steps” must be taken within 90 days of receipt or the employer may be found liable of violating federal immigration law. “Reasonable Steps” or “Safe Harbor” provisions that DHS recommends are:

·        The employer should promptly check its records to determine if typographical, transcription or clerical error was the cause.  If such an error did occur then the employer needs to correct its records, inform any relevant agencies, verify the corrected information with the relevant agency, and document the correction. This first step should be done within the first 30 days after receipt.

·        If above action does not correct the discrepancy, then the employer would need to promptly ask the employee to verify that the employer’s records are accurate. As above, if such an error did occur then the employer needs to correct its records, inform any relevant agencies, verify the corrected information with the relevant agency, and document the correction. If the records are accurate then the employer needs to have the employee address the problem with the relevant agency (i.e. visiting the local SSA office, bringing whatever acceptable documents are needed to correct the issue). This next step should also be done within the first 30 days after receipt.

·        If the discrepancy still exists, within 90 days of receipt of the letter, the employer must complete a new I-9 Form (using the same steps as if the employee was newly hired), except no documents may be used to verify the employee’s authorization that use the questionable Social Security number nor any document that does not have a photograph of the employee.

If all of the above verification steps fail then the employer must choose to either take action to terminate the employee, or be in violation of federal immigration law by knowingly continuing the employ of unauthorized persons.