Bridge over troubled waters
SSA and DHS found yet another way to enforce the E-verify system: recently issuing a Supplemental Final Rule with Guidance For Employers who Receive Social Security 'No-Match' Letters. Around 250 million of W-2 forms are sent to the SSA each year, from which around 4% result in “No-Match” letters. These letters indicate to the employer, that there is not a match between the SSN of the employee and the SSN in the W-2 form filed previously with the SSN. Here is the definition form the ICE website: “A letter to employer from Social Security Administration stating that the names or corresponding social security account number submitted for certain employees do not match the Agency’s records, or a letter from the Department of Homeland Security notifying employer that the immigration-status or employment-authorization documentation presented or referenced by the employee is not consistent with DHS records.”
The reasons could be many – from administrative error to cheating. As Mr. Chernoff puts it in the Supplement (Guidence) to the final rule:
“An employer who receives written notice from the Social Security Administration as described in paragraph (!)(l)(iii)(B) of this section will be considered by the Department of Homeland Security to have taken reasonable steps -and receipt of the written notice will therefore not be used as evidence of constructive knowledge -if the employer takes the following actions” (See our summary of the recommended steps in the end of this article.)
The result of improper handling could be devastating if the steps described in the Supplement to the Final Rule are not followed.
Here are the steps to follow, if you receive a “No-Match” letter:
- First. Check to see if the discrepancy is a result of a typo any other clerical error.
- Second. If there is a clerical error, correct it with SSA. Keep record of these updates and store them together with the I-9 form of the employee. DO NOT PERFORM A NEW VERIFICATION!. The Employee has 30 days to complete all these steps.
- Third. If there is not an error, the employer must promptly request that the employee resolve the issue with the SSA. Both the employer and the employee have 90 days to resolve the discrepancy issue.
If the employee is unable to verify with the SSA within the deadline, the employer MUST AGAIN VERIFY employment eligibility of the employee. If the employee receives a “written notice to the employer from the Department of Homeland Security that the immigration status document or employment authorization document presented or referenced by the employee in completing Form I-9 is assigned to another person, or that there is no agency record that the document has been assigned to any person.” then the employee will know that all necessary steps are completed. This will mean also that the employee is not eligible for employment and either has to be terminated, re-authorized to work in the US or identified with another set of documents, different from these used for the original I-9 form.
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