Question:

My company recently received a no-match letter regarding one of our current employees. In the past, my company utilized the safe harbor provision of the federal government’s 2007 regulation when responding to no-match letters. Now that the regulation has been rescinded, how should we respond?

Answer:

My company recently received a no-match letter regarding one of our current employees. In the past, my company utilized the safe harbor provision of the federal government’s 2007 regulation when responding to no-match letters. Now that the regulation has been rescinded, how should we respond?

Many employers are familiar with what are commonly referred to as no-match letters. Such letters are sent to an employer by the Department of Homeland Security (“DHS”) when the immigration status or employment authorization documentation presented or referenced by an employee is not consistent with DHS records. The Social Security Administration (“SSA”) also issues no-match letters to inform employers when the social security number on an employee’s W-2 Form does not match the SSA’s records. While no-match letters can result from typographical errors, transcription errors, and unreported name changes, they can also indicate an employee’s ineligibility to work in the United States. Accordingly, employers who receive no-match letters should promptly determine what caused the no-match letter to be sent before taking any adverse employment action.

Pursuant to the Immigration and Nationality Act (the “Act”), it is illegal for an employer to knowingly hire or continue to employ an individual who is not authorized to work in the United States. When an employer receives a no-match letter, its conduct is governed by the Act and the corresponding regulations. In 2007, the DHS issued a regulation providing a “safe harbor” for employers who receive no-match letters. A safe harbor is a provision that provides protection from liability if certain conditions are met. The regulation stated that receipt of a no-match letter would not be used as evidence to prove an employer had constructive knowledge that an individual was not authorized to work in the United States so long as the employer complied with the terms of the safe harbor guidelines.

The safe harbor guidelines stated that upon receipt of a no-match letter from the DHS, the employer must contact the local DHS office and attempt to resolve the issue within thirty days of receiving the letter. If the issue was not resolved within 90 days of receiving the letter, the employer was to verify the employee’s employment authorization and identity via a specified process within three days.

The safe harbor process also provided that upon receipt of a no-match letter from the SSA, the employer must check its records to determine if an error was made, verify the employee’s name and social security number with the SSA, and properly record and document the verification, all within thirty days of receiving the letter. Further, the safe harbor guidelines required that the employer request that the employee confirm his or her name and social security number. Moreover, if the employee confirms the information is correct, the employer must instruct the employee to resolve the discrepancy with the SSA within 90 days from the date the employer originally received the no-match letter. If the discrepancy was not resolved within 90 days of receiving the letter, the employer was to verify the employee’s employment authorization and identity via a specified process within three additional days.

However, in AFL-CIO v. Chertoff, the United States District Court for the Northern District of California prevented the above-described regulation from being enforced. Regardless of that decision, many employers were advised to and did in fact adhere to the safe harbor provisions. In 2008, the DHS responded to the issues raised by the Court but did not change the regulatory text.

On October 7, 2009, the DHS rescinded the above-described regulation, explaining that it would be utilizing various systems and procedures instead of the safe harbor provisions. The rescission is effective November 6, 2009. However, the rescinded regulation, although not legally binding, continues to provide guidance to employers who receive no-match letters. At a minimum, an employer who receives a no-match letter should check its records for errors, inform the employee of the no-match letter, ask the employee to review the information, and allow the employee a reasonable period of time to resolve the no-match issue with the SSA.

Lastly, employers who take adverse employment action based in part on the receipt of a no-match letter must take great care in doing so to avoid potential claims of illegal employment discrimination based on national origin, citizenry, or other protected classes, as the receipt of a no-match letter is not conclusive proof that a worker is not authorized to work in the United States. Moreover, a determination of whether an employer had constructive knowledge that an employee or applicant was an unauthorized worker is based on the totality of the circumstances. Additional information on responding to no-match letters can be located at http://www.usdoj.gov/crt/osc.
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