In the spring of 2019, the Social Security Administration (SSA) renewed its practice of sending employment eligibility correction request notices (known as “no-match letters”) to employers.  The SSA had discontinued the practice of sending no-match letters between 2012 and 2018, but has issued more than half a million notices so far in 2019.  Against the backdrop of a tight labor market, these letters particularly affect businesses in industries that rely on immigrant workers, including employers in the hospitality, construction, and agricultural industries.

No-match letters notify employers of a discrepancy in an employee’s information (name, Social Security number) between the SSA’s records and the employee’s Form W-2.  The no-match letters request employers to review the discrepancies through a designated SSA online portal, inform employees of the no-match, and submit corrected information on a Form W-2c within 60 days. 

What Is the Best Response to a No-Match Letter?

When an employer receives a no-match letter, the employer should first check its records to ensure the no-match was not caused by an internal error or typo.  Next, the employer should notify the employee of the no-match, and request that the employee take steps to clear up the matter, often by addressing it directly with the SSA.

A no-match letter does not mean an employee lacks work authorization or intentionally provided misleading information.  Employers should not rely on the receipt of a no-match letter alone as a basis for taking any adverse action against an employee.  Further, throughout the process, employers should not require employees to provide specific I-9 documents to address the no-match or require written proof of an SSA verification.  Such actions may violate federal and state antidiscrimination laws.

The procedure for handling no-match letters is very fact-specific beyond these general guidelines.  Employer responses will vary based on the reason for the mismatch.  Employees may need time to visit their local SSA office to address discrepancies.  Regardless of the circumstances, employers should carefully document their efforts to resolve the no-match situation. 

What Happens if There’s No Response?

There are serious immigration compliance issues that may arise when an employee takes no action to address a no-match.  Past guidance from the former General Counsel for the United States Immigration and Naturalization Service, now known as Immigration and Customs Enforcement (“ICE”), states that if a company does not take any action against an employee who fails to explain or reconcile their Social Security number with SSA records and if it ultimately turns out that the employee was not authorized to work in the U.S., ICE may find the employer had constructive knowledge that it was employing an undocumented worker.¹  In other words, ICE may take the position that if an employee does not address a no-match issue, the employer should have known the employee lacked work authorization status.  There are both criminal and civil penalties for knowingly employing individuals who lack work authorization. 

The immigration compliance concerns triggered by no-match letters can turn a routine payroll task into a serious issue.  When an employer continues the employment of an employee who fails to respond to a no-match notification, the employer may face civil and even criminal consequences.  Yet, employers that move too quickly, thereby failing to provide the employee a reasonable opportunity to correct any no-match problems, may also be subject to civil liability.  For that reason, employers should discuss with experienced counsel how to handle a no-match letter.      

In addition, employers that have not (yet) received a no-match letter may wish to explore proactive measures.  Businesses should prepare for how they will respond to any no-match letters, or similar government inquiry, including who will be assigned to respond, how the process will work, and what records will be kept.  Employers should also consider an internal audit of I-9 files, which can help them identify and correct discrepancies.