Social Security Mismatch Letters

Existing Immigration Law prohibits knowing employment of unauthorized labor. Under current Immigra-tion regulations, knowledge of a worker's unauthorized status can be actual or 'constructive.' The proposed regulations deal only with the issues of constructive knowledge. The safe harbor defense is of no value to a claim that the employer had actual knowledge that it employed unauthorized workers.

Constructive knowledge of unauthorized employment is defined by the DHS proposed rules as 'knowledge which may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain situation.' The proposed rules add two specific situations to the existing examples where an employer may have constructive knowledge:

Written notice from the Social Security Administration (SSA) that the combination of name and SSN submitted for an employee does not match SSA records; or

Written notice from DHS that an immigration status document or an Employment Authorization Document (EAD) presented by an employee as proof of work authorization is assigned to another person or that there is no record of a status document or EAD being issued to that person.

SSA Mismatch

What actions should a company take if it receives an SSA mismatch notice? Within 14 days of receipt of the no-match notice, an employer should attempt to resolve the Social Security discrepancy by the following two methods.

First, the company should check its personnel and payroll records to determine whether the discrepancy results from a clerical error on the employer's part. If an error is found, the employer must: 1) make the correction; 2) notify SSA of the correction; 3) verify that SSA has made the correction and the new information matches SSA records; and 4) make a record of the manner, date, and time of such verification. Employers should also note that the proposed rules do not anticipate that the SSA will send confirmation of verification, and as a practical matter, it does not have the capacity to do so. Therefore, it is recommended that employers take matters into their own hands and call the SSA to confirm that it has received the information.

Alternatively, if there is not a simple explanation and an easy remedy for the mismatch, the employer must promptly ask the employee whether the information in his or her personnel records is correct. If the employee claims the information is correct, the no-match letter notwithstanding, the employer should direct the employee to resolve the discrepancy with SSA. However, if the employee claims that the employer's records are incorrect, the employer should re-check its records as described above.

DHS Immigration Document Mismatches

What is the difference between SSA and DHS mismatch notices? Unlike the SSA no-match notification process, the DHS has no system that checks and catches mismatched immigration documents. These mismatches generally arise in connection with an audit, likely by the Immigration and Customs Enforce-ment office (ICE) within DHS or by the Office of Federal Contract Compliance Programs (OFCCP), in connection with affirmative action audits. When an employer receives a DHS immigration related no-match notice, the proposed regulations direct the employer to attempt to resolve the discrepancy by 'taking reasonable steps to resolve the question raised by DHS about the immigration status document or EAD.' It is notable that DHS, the agency that publishes these regulations, provides no guidance as to what reasonable steps an employer can take under current law. Absent a direction in the mismatch notice, the employer should attempt to contact the nearest Citizenship and Immigration Service, a division of DHS, to inquire about the mismatch and document efforts to do so. If that proves unsuccessful, the employer should confront the employee and follow the same steps suggested in connection with a Social Security mismatch, as described above.

Process for Resolving Mismatches

If a Social Security number or immigration number mismatch is not resolved within 60 days of the employer's receipt of the initial mismatch letter, the proposed regulations require the employer to reverify the employee's work eligibility and identity within 3 additional days after the 60th day following the receipt of the no-match document. The method for doing this is requiring completion of a new I-9 form, as though the employee were commencing new employment'with the following important exceptions.

First the employer must use a new I-9 form, and have the employee complete Section 1 ' the employee verification, as if he or she were newly hired. Then, a designated employer representative must complete Section 2, the employer's verification section. The rules for Section 2 are similar to those for commencement of employment, except that the employee may not present as a work authorization document any document that was the subject of the no-match letter, and the document used to establish identity must include a photograph. Last, the employer must retain the new I-9, in addition to the original, for the same period and in the same manner as though the employee were newly hired.

Can an employee presenting new work authorization remain employed? The requirement that the employer obtain a new I-9 document with different work and identity documents does not mean that the employer has violated the immigration act by employing that person. On the contrary, the regulations anticipate that it is permissible to accept a new I-9 form with facially valid identity and work authorization documents and continue the employee's employment ' … if the employee is verified, then even if the employee is in fact an unauthorized alien, the employer will not be considered to have constructive knowledge of that fact.' This means that if an employer should elect to terminate an employee who provides false identification or work authorization documents for breach of honesty related policies, and faces a legal challenge, the employer will not be able to defend the claim by arguing that a failure to terminate would have exposed the company to risk of immigration enforcement action. Employers, especially those with union agreements or in states with liberal protections for undocumented workers, must proceed carefully in imposing discipline in mismatch related circumstances.

When the mismatched employee cannot present new authorization documents, the employer should take into consideration the paragraph below, taken from DHS's proposed guidelines.

[i]f the discrepancy referred to in the no-match letter is not resolved, and if the employee's identity and work authorization cannot be verified using a
reasonable verification procedure ' then the employer must choose between taking action to terminate the employee or facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, violated INA section 274A(a)(2), 8 U.S.C. 1324a(a)(2).

Implicit in the 'either/or' scenario outlined by DHS is an expectation that, contrary to current understanding, an uncorrectable Social Security mismatch is evidence of immigration status. It remains to be seen whether the SSA, an agency independent of the DHS, will follow suit and modify its no-match correspondence to alert employers to the possibility that an unresolved mismatch situation can mean unauthorized work status and a need to terminate employment.

Conclusion

Until further guidance from SSA or DHS through the comment period, employers should proceed with caution in implementing termination for unresolved mismatches as suggested by the proposed regulations. The most prudent approach remains an investigation of the underlying facts, credibility assessments, and discipline that reflects a consistent, nondiscriminatory application of workplace rules.

Bonnie K. Gibson is managing director of Littler Mendelson Global, a division of Littler Mendelson, P.C. She can be contacted at [email protected].

On June 14 of this year, the Department of Homeland Security (DHS) published for comment in the Federal Register proposed rules outlining recommended procedures for employers to follow in response to receiving Social Security mismatch notices. In promulgating the proposed rules, DHS outlined a new enforcement position ' namely, that no-match letters are relevant evidence that can put employers on notice about the immigration status of employees.

DHS's proposed regulations do not impose mandatory obligations; rather, they provide prescribed steps which would create a safe harbor defense to immigration charges based on mismatch notice evidence.. The proposed regulations are subject to a 60-day comment period before final publication. The comment period closed on Aug. 14, and it is likely that DHS will amend the proposal before final publication.. However, because the proposed rules address ways employers can mitigate risk under current law, prudence suggests that companies implement these processes, to the extent feasible, as soon as possible.

Immigration Law

Existing Immigration Law prohibits knowing employment of unauthorized labor. Under current Immigra-tion regulations, knowledge of a worker's unauthorized status can be actual or 'constructive.' The proposed regulations deal only with the issues of constructive knowledge. The safe harbor defense is of no value to a claim that the employer had actual knowledge that it employed unauthorized workers.

Constructive knowledge of unauthorized employment is defined by the DHS proposed rules as 'knowledge which may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain situation.' The proposed rules add two specific situations to the existing examples where an employer may have constructive knowledge:

Written notice from the Social Security Administration (SSA) that the combination of name and SSN submitted for an employee does not match SSA records; or

Written notice from DHS that an immigration status document or an Employment Authorization Document (EAD) presented by an employee as proof of work authorization is assigned to another person or that there is no record of a status document or EAD being issued to that person.

SSA Mismatch

What actions should a company take if it receives an SSA mismatch notice? Within 14 days of receipt of the no-match notice, an employer should attempt to resolve the Social Security discrepancy by the following two methods.

First, the company should check its personnel and payroll records to determine whether the discrepancy results from a clerical error on the employer's part. If an error is found, the employer must: 1) make the correction; 2) notify SSA of the correction; 3) verify that SSA has made the correction and the new information matches SSA records; and 4) make a record of the manner, date, and time of such verification. Employers should also note that the proposed rules do not anticipate that the SSA will send confirmation of verification, and as a practical matter, it does not have the capacity to do so. Therefore, it is recommended that employers take matters into their own hands and call the SSA to confirm that it has received the information.

Alternatively, if there is not a simple explanation and an easy remedy for the mismatch, the employer must promptly ask the employee whether the information in his or her personnel records is correct. If the employee claims the information is correct, the no-match letter notwithstanding, the employer should direct the employee to resolve the discrepancy with SSA. However, if the employee claims that the employer's records are incorrect, the employer should re-check its records as described above.

DHS Immigration Document Mismatches

What is the difference between SSA and DHS mismatch notices? Unlike the SSA no-match notification process, the DHS has no system that checks and catches mismatched immigration documents. These mismatches generally arise in connection with an audit, likely by the Immigration and Customs Enforce-ment office (ICE) within DHS or by the Office of Federal Contract Compliance Programs (OFCCP), in connection with affirmative action audits. When an employer receives a DHS immigration related no-match notice, the proposed regulations direct the employer to attempt to resolve the discrepancy by 'taking reasonable steps to resolve the question raised by DHS about the immigration status document or EAD.' It is notable that DHS, the agency that publishes these regulations, provides no guidance as to what reasonable steps an employer can take under current law. Absent a direction in the mismatch notice, the employer should attempt to contact the nearest Citizenship and Immigration Service, a division of DHS, to inquire about the mismatch and document efforts to do so. If that proves unsuccessful, the employer should confront the employee and follow the same steps suggested in connection with a Social Security mismatch, as described above.

Process for Resolving Mismatches

If a Social Security number or immigration number mismatch is not resolved within 60 days of the employer's receipt of the initial mismatch letter, the proposed regulations require the employer to reverify the employee's work eligibility and identity within 3 additional days after the 60th day following the receipt of the no-match document. The method for doing this is requiring completion of a new I-9 form, as though the employee were commencing new employment'with the following important exceptions.

First the employer must use a new I-9 form, and have the employee complete Section 1 ' the employee verification, as if he or she were newly hired. Then, a designated employer representative must complete Section 2, the employer's verification section. The rules for Section 2 are similar to those for commencement of employment, except that the employee may not present as a work authorization document any document that was the subject of the no-match letter, and the document used to establish identity must include a photograph. Last, the employer must retain the new I-9, in addition to the original, for the same period and in the same manner as though the employee were newly hired.

Can an employee presenting new work authorization remain employed? The requirement that the employer obtain a new I-9 document with different work and identity documents does not mean that the employer has violated the immigration act by employing that person. On the contrary, the regulations anticipate that it is permissible to accept a new I-9 form with facially valid identity and work authorization documents and continue the employee's employment ' … if the employee is verified, then even if the employee is in fact an unauthorized alien, the employer will not be considered to have constructive knowledge of that fact.' This means that if an employer should elect to terminate an employee who provides false identification or work authorization documents for breach of honesty related policies, and faces a legal challenge, the employer will not be able to defend the claim by arguing that a failure to terminate would have exposed the company to risk of immigration enforcement action. Employers, especially those with union agreements or in states with liberal protections for undocumented workers, must proceed carefully in imposing discipline in mismatch related circumstances.

When the mismatched employee cannot present new authorization documents, the employer should take into consideration the paragraph below, taken from DHS's proposed guidelines.

[i]f the discrepancy referred to in the no-match letter is not resolved, and if the employee's identity and work authorization cannot be verified using a
reasonable verification procedure ' then the employer must choose between taking action to terminate the employee or facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, violated INA section 274A(a)(2), 8 U.S.C. 1324a(a)(2).

Implicit in the 'either/or' scenario outlined by DHS is an expectation that, contrary to current understanding, an uncorrectable Social Security mismatch is evidence of immigration status. It remains to be seen whether the SSA, an agency independent of the DHS, will follow suit and modify its no-match correspondence to alert employers to the possibility that an unresolved mismatch situation can mean unauthorized work status and a need to terminate employment.

Conclusion

Until further guidance from SSA or DHS through the comment period, employers should proceed with caution in implementing termination for unresolved mismatches as suggested by the proposed regulations. The most prudent approach remains an investigation of the underlying facts, credibility assessments, and discipline that reflects a consistent, nondiscriminatory application of workplace rules.

Bonnie K. Gibson is managing director of Littler Mendelson Global, a division of Littler Mendelson, P.C. She can be contacted at [email protected].