DHS Issues Final Rule on No-Match Letters

October 27th, 2008

The Department of Homeland Security (DHS) has issued a Supplemental Final Rule that provides guidance and analysis for the department’s No-Match Rule.  It supplements the original Final Rule of August 2007 and makes very few changes to it.  It states what steps responsible employers can take to resolve discrepancies identified in no-match letters so that they will be covered under a “safe harbor” and not be deemed to have constructive knowledge of illegally employing unauthorized workers.  In order for the rule to take effect, DHS will have to return to the Northern District Court in California to lift a preliminary injunction, originally issued last year.

Every year, the Social Security Administration informs thousands of employers through “no-match” letters that employees’ names and corresponding Social Security numbers, recorded on Form W-2 wage reports, do not match SSA’s records.  The No-Match provides guidance on the steps an employer may take when receiving such letters.  Employers who follow these steps will be protected against a finding of constructive knowledge of employing undocumented workers.

In particular, employers must try to resolve the discrepancy, or have the employee do so, within 90 days of receipt of the no-match letter.  If it is resolved, then the employer must complete a new Form I-9 within 93 days of receipt of the letter.  If the discrepancy is not resolved and the employee’s work authorization and identity are not verified, then the employer must terminate the employee or risk being found to have constructive knowledge of lack of employment authorization by DHS.

The Office of Special Counsel, in response to the issuance of the rule, has stated that as long as employers applies uniform procedures to all employees in responding to no-match letters, without a purpose to discriminate on the basis of perceived citizenship status or national origin, then employers will not be found to have violated anti-discrimination provisions of the Immigration and Nationality Act.