THE rETurn of soCial sECuriTY no-maTCH lETTErs: immigraTion ConsidEraTions
Immigration & Nationality Section
Chair: Yova Borovska - Buchanan Ingersoll & Rooney PC
no-match letters can potentially
result in workforce compliance
violations under the immigration
reform and Control act (irCa).
I
n March 2019, the Social
Security Administration (SSA)
resumed mailing Educational
Correspondence/Employer
Correction Requests (known as
“no-match” letters) to employers.
No-match letters request corrected
information to reconcile
mismatches between certain
employees’ names and Social
Security numbers on their Forms
W-2 and the SSA’s database. These
letters provide employers with 60
days to submit corrections. The
SSA previously sent such letters
regularly, but it stopped in 2012.
Per SSA statistics, 577,349 letters
have been mailed in 2019, and the
SSA plans to mail the remaining
letters for tax year 2018 in the Fall
of this year.
The SSA, admittedly, does not
have enforcement authority against
employers for a failure to respond,
and a mismatch is not necessarily
an indication of an employee’s
lack of work authorization. Yet,
no-match letters, if left unaddressed
by the employer, can potentially
result in a finding of workforce
compliance violations under the
Immigration Reform and Control
Act of 1986 (IRCA). The receipt
of a no-match letter raises
questions related to the identity
and work authorization of affected
employees. If such workers are
indeed not work-authorized, the
employer can be found liable under
IRCA for knowingly hiring or
continuing to employ an individual
who is not authorized to work in
the United States.
IRCA liability applies to actual
and constructive knowledge. For
example, when an employer
receives information indicating
that an employee is potentially not
work-authorized but fails to take
reasonable steps to investigate, it
can be deemed to have constructive
knowledge. Therefore, employers
should take reasonable steps with
respect to no-match letters, such
as checking internal records for
clerical errors and, if necessary,
requesting the cooperation of
affected workers in resolving the
mismatch. Immigration and
Form I-9 considerations can be
implicated if an employee admits
to using a false identity and
provides new documentation, if
the employee admits to being
unauthorized to work, or if the
employee cannot resolve the
mismatch after being provided
with a reasonable amount of time.
No-match letters can be relevant
in the event of an I-9 Form
inspection by the U.S. Immigration
and Customs Enforcement (ICE)
Homeland Security Investigations
(HSI). During the I-9 inspection
process, HSI often demands copies
of no-match letters received in
the past in order to establish the
employer’s constructive knowledge
of an employee or contractor’s
undocumented status. In recent
years, HSI has stepped up its
enforcement of IRCA provisions
through the I-9 inspection process.
According to ICE, from July 16 to
20, 2018, the agency served 2,738
Notices of Inspection and made 32
arrests. From January 29 to March
30, 2018, it served 2,540 Notices
of Inspection and made 61 arrests.
In fiscal year 2017, employers
were ordered to pay $97.6 million
in judicial forfeitures, fines and
restitution, and $7.8 million in civil
fines for IRCA violations.
With so much at stake, attorneys
advising employers on no-match
letters should be mindful of any
related immigration considerations.
n
Author: Yova A. Borovska -
Buchanan, Ingersoll & Rooney PC
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SEPT - OCT 2019
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HCBA LAWYER