On August 13, 2007, new safe harbor procedures for employers who receive a no-match letter were published in the Federal Register, and they were expected to become effective by September 12, 2007.

In 2007, the Social Security Administration (SSA) estimates it will send about 140,000 letters to employers concerning 8 million workers whose names and corresponding Social Security numbers provide to their employers do not match SSA’s records.

Advocates are predicting many workers will be fired from their jobs based on their employer’s receiving a no-match letter. These firings will include authorized workers who receive a no-match letter because of mistakes in the government’s database. They will also include unauthorized workers who are unable to correct their records.

The Department of Homeland Security (DHS) is responsible for the revisions to the procedures, and seems to be converting the no-match letter into an immigration enforcement tool. DHS is allowing Immigration and Customs Enforcement (ICE) to assume if an employer receives a no-match letter that the employer has “constructive knowledge” that an employee is unauthorized to work.

For advocates, it may be important they educate workers about the new rules on no-match letters and explain the different types of errors that can commonly result in a no-match letter. Workers have rights, including their right to be free of retaliation for exercising their rights as workers and their right to remain silent.

If a worker is notified that their employer has received a no-match letter, workers should request a copy of the letter to ensure the employer is responding to a notice from either SSA or DHS.

Workers should also be aware that employers may abuse and misuse the letters and the new rules. As such, they should document who the employer has notified of a discrepancy.

If workers have any questions about their workers’ or immigration rights, they should call the Law Offices of James Scott Farrin’s Social Security Attorney, Rick Fleming.

Mr. Fleming advises all employees to be aware that within 30 days of an employer receiving a no-match letter:

• Employers should promptly check records to ensure the “no-match” is not a typographical or clerical error. • If there is an error, employers should correct the information and verify the corrected data with the relevant agency, which is either SSA or DHS. • If the error cannot be fixed, employers should promptly request the employee to confirm their name and Social Security number in their employer’s records. • If the employee corrects the information, employers must notify the appropriate agency and verify that the information is correct with either the SSA or DHS. • If the information is correct, employers should advise the employee to contact the correct agency to fix the information.

A no-match has been resolved only when the employer verifies the information with DHS or SSA.

If an error is not fixed within 90 days of receiving a no-match letter, employers should complete a new I-9 employment eligibility form without using the documents that were the subject of the no-match letter. Employers have three additional days (or a total of 93 days) to correct this.

If an employee is unable to fix the problem in the no-match letter, the employer may choose to fire the employee or run the risk that DHS will find that the employer had knowledge of hiring an authorized worker.

But, DHS has said if employers do not obtain any knowledge about having hired an unauthorized worker, the worker may continue to work for them until all steps are completed. There is, however, nothing preventing employers from firing employees before the steps are completed.

Source: “DHS announces it has finalized ‘safe harbor procedures for employers who receive a no-match letter’ rule,” National Immigration Law Center, August 10, 2007.