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Homeland Security Proposes I-9 'No-Match' Safe Harbor Rule

Each year, many of the approximately 235 million wage-earning reports filed with the Social Security Agency (SSA) result in a mismatch between the employee’s name and reported social security number. In some cases, the SSA sends employers a “no-match” letter notifying them of the discrepancy. The Department of Homeland Security (“DHS”) may send a similar notice when, through an audit or otherwise, it learns that an immigration status or employment authorization document presented by an employee is in the name of another person or is not part of the agency’s records.

Pursuant to the Immigration Reform Act of 1986, employers must require each employee to complete an I-9 form verifying their identity and authorization to work in the United States. As part of that process, employees often provide their employer with a Social Security card or a document issued to establish their eligibility for employment. Although employers are not expected to be document verification experts, DHS has previously taken the position that a “no-match” letter from SSA or DHS may put an employer on notice that one of its employees may not be authorized to work in the United States.

To address employer concerns, DHS has issued a proposed rule which creates a “safe harbor” procedure for employers to follow when they receive a “no-match” letter. Employers who follow the steps set out in the rule will be considered by DHS to have taken a reasonable response to receiving a no-match letter and will not be deemed to have “constructive knowledge” that the employee is an unauthorized alien.

The procedure to be followed with respect to a SSA “no-match” notice is:

1) The employer takes reasonable steps, within 14 days, to attempt to resolve the discrepancy: (a) by checking its records promptly after receiving notice to determine whether the discrepancy resulted from a typographical, transcribing or similar clerical error and, if so, correcting the error(s) and informing SSA of the corrected information and verifying that the information matches the agency’s records. The employer should also document the manner, date and time of its efforts to resolve the discrepancy; or (b) if the employer finds no error in its records, it should ask the employee to confirm that the information is correct. If the employee provides corrected information, the employer should correct its records, inform SSA, and verify that the corrected name and social security number match the agency’s records. If, on the other hand, the employee confirms that the employer’s records are correct, the employer should ask the employee to resolve the discrepancy with SSA. In either instance, the employer should document the manner, date and time of its efforts.

2) If the discrepancy is not resolved within 60 days of receipt of the “no-match” letter, the employer should, within an additional 3 days, re-verify the employee’s work eligibility by having the employee complete a new I-9 form, just as if he/she were newly hired. The new I-9 form and the original form must both be maintained by the employer. The employee may not resubmit the document at issue or the receipt for a replacement of that document. Also, no document without a photograph may be used to establish the employee’s identity.

3) If the employer completes the verification procedure, and the employee is “verified”, i.e., the employee presents facially valid documents sufficient to complete the I-9 form, the proposed rule provides that “even if the employee is in fact an unauthorized alien, the employer will not be considered to have constructive knowledge of that fact”.

4) If the discrepancy in the no-match letter is not resolved, and if the employee’s identity and work authorization cannot be verified, then the employer must choose between discharging the employee or facing the risk of DHS finding that the employer had constructive knowledge that the employee was an unauthorized alien.

If the no-match notice is from DHS, the proposed rule states only that the employer should take “reasonable steps” within 14 days of receiving the notice to resolve the discrepancy. In the absence of any directions in the DHS notice itself, the employer should contact DHS and the employee to determine if the discrepancy can be resolved and keep a record of each step it takes in that process. If the discrepancy cannot be resolved within 60 days, then the proposed rule provides that the employer should follow steps 2-4 above.

The proposed rule does not create any new obligation for employers. Instead it codifies the steps DHS will consider “to be a reasonable response to receiving a no-match letter – a response that will eliminate the possibility that DHS, when seeking civil money penalties against an employer, will allege, based on the totality of relevant circumstances, that an employer had to rebut an inference of constructive knowledge” that an employee is not authorized to work in the United States. DHS has cautioned, however, that even following these steps will not immunize an employer liability if it has actual knowledge that the employee is not authorized.

Although the proposed rule provides useful guidance in avoiding a “constructive knowledge” finding, it leaves unresolved other issues that arise for employers wrestling with how to respond to a mismatch letter. On one hand, the immigration laws require employers to verify their employees' employment authorization and penalize employers for employing unauthorized aliens. On the other hand, the immigration laws also provide that employers cannot demand a particular form of documentation to verify employment authorization, nor discriminate on the basis of national origin or citizenship, and national origin discrimination is prohibited by Title VII and state and local EEO laws. Given these sometimes conflicting parameters, it is vital that employers receiving a mismatch letter work methodically to identify the source of the error before taking any adverse action against an employee.

The proposed rule does not address other tensions. For example, the rule specifically provides that employers faced with an unresolved mismatch must obtain a new I-9 form and verify the new identity and work authorization documents which the employee provides. However, the rule does not discuss whether an employer will want to continue the employment of an individual who submitted a false document in connection with his or her employment. Many employers have policies/practices which mandate that applicants and employees will be terminated if they falsify employment documentation. The consistent application of such a policy/practice will not violate the immigration or anti-discrimination laws.

Some of the public comments submitted to DHS criticized the proposed rule, noting that it is unrealistic to expect the SSA to resolve any mismatch discrepancy within the 60-day window and suggesting longer deadlines. Immigration advocacy groups voiced concerns that immigrants will be disproportionately affected by employers who fire employees rather than risk a “constructive knowledge” finding by DHS when discrepancies cannot be resolved within the prescribed deadlines. DHS has not yet announced whether it will make any changes to the proposed rule in response to the public comments.


November 30, 2006




Bacharach, Charles R.