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Employers Take Note: The Social Security Administration Resumes Sending No-Match Letters 

No-match letters are now being sent to employers by the Social Security Administration (SSA) after litigation arose in 2007 challenging a proposed no-match rule issued by the U.S. Department of Homeland Security (DHS). The resumption of letters became effective March 22, 2011.

No-match letters are issued by the SSA if an employee’s name does not correspond to a valid Social Security number. The no-match proposed rule provided that a no-match letter could be enough to notify an employer that an employee might not be eligible to work in the United States. However, the DHS rescinded the controversial no-match rule in a 2009 final rule, leaving employers without a clear course of action once a no-match letter is received.

The no-match letter states that employers do not have to respond to the letter. However, if employers choose not to respond, the SSA may refer the matter to the Internal Revenue Service or the Justice Department for criminal prosecution of Social Security fraud. Additionally, Immigration and Customs Enforcement officials request copies of SSA no-match letters during onsite I-9 audits, and the DHS M-274 “Handbook for Employers” does not address how employers should respond to no-match letters.

What Should Employers Do?

No-match letters should not be ignored. Company officials who receive the letter should note the date they arrived and proceed with a pre-determined action plan that provides guidance on how to respond. The action plan should be documented and followed consistently for each no-match letter that is received.

Individual managers should not be allowed to make ad hoc decisions in response to no-match letters. All letters should be provided to HR, or the company official in charge of HR, for investigation. HR should make sure that the no-match did not occur due to a typo or other documentation error.

Employers should give employees whose Social Security numbers don’t match their names a reasonable period to resolve a no-match, generally between 60 to 120 days. It might be appropriate to discharge employees who fail to provide alternate acceptable documentation of identity and work eligibility within a reasonable period.

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