If you recently received a “no match” letter from the Social Security Administration (SSA), now is the time to give it a second look and add it to your "to do" list.
On August 10, 2007, the Department of Homeland Security (DHS) issued a final rule on safe harbor procedures for employers who receive a "no-match" notification from the SSA or DHS. The final rule was published in the Federal Register on August 15, 2007. When the initial rule was proposed last June, SHRM submitted comments.
Under current law, an employer is required to send SSA wage information on an annual basis. This information includes the employee's name and social security number. When the employer's submission does not match SSA records, SSA will send the employer a "no-match" letter. This "no-match" letter gives the employer notice, among other things, that the employee may not be authorized to work in the United States pursuant to the federal immigration laws.
The new final rule outlines safe harbor procedures that an employer should follow after receiving a "no-match" letter. These include requiring an employer to:
Take reasonable steps within 30 days to correct records and inform the relevant agencies;
Resolve any discrepancies within 90 days; and
Complete a new Form I-9 within 93 days if the discrepancy is not resolved within the 90-day period.
By following the safe harbor procedures, employers will avoid the risk of having had "constructive knowledge" that an employee identified in the "no-match" letter is not authorized to work in the United States.
According to the new rule, if an employer only gains "constructive knowledge" during the safe harbor process, the employer may continue to employ the individual until all of the steps in the safe harbor procedure are completed. However, an employer with "actual knowledge" that an employee is an unauthorized alien has no protection from liability.
The final rule also provides that employers should store records of verified resolutions along with the employee's Form I-9. Employers are encouraged to document telephone conversations and to retain all SSA correspondence, computer-generated printouts and e-mails that show the employer has resolved the discrepancy.
The final rule becomes effective on September 14, 2007. To view a copy of the final rule, please click HERE.