SHRM Urges Safe Harbor for No-Match Letters

Sep 22, 2009

SHRM Urges Safe Harbor for No-Match Letters

Contact – Julie Malveaux – (703) 535-6273 –

Contact – Jennifer Hughes – (703) 535-6072 –

Alexandria, Va. - On Friday, September 18, 2009, SHRM filed comments with the U.S. Department of Homeland Security (DHS) in response to its proposal to rescind the rule laying out safe-harbor procedures for employers who receive a “no-match” letter.

Over the years, SHRM members have sought advice on what an employer should do when they receive a letter from Social Security Administration (SSA) indicating that an employee’s name and social security number do not match SSA records or from DHS indicating that an employee’s work authorization or immigration documents cannot be verified.

In October 2008, DHS finalized a rule outlining the steps employers should take to ensure that receipt of a no-match letterwould not be considered “constructive knowledge” that the employee was not legally authorized to work in the United States. In rescinding the rule, DHS indicated it preferred to use other tools currently available (E-Verify, etc.) to reach its regulatory and enforcement goals.

SHRM and the American Council on International Personnel (ACIP) filed comments expressing concern that the rule’s rescission leaves employers void of any official guidance from the government on how to protect themselves against a charge of “constructive knowledge” or a claim that they have discriminated against an employee by investigating a mismatch. Rather than allow such employer confusion to continue, SHRM and ACIP urged DHS to provide some kind of safe-harbor for employers who undertake a good faith attempt to resolve such discrepancies.

To view a copy of SHRM’s comment to DHS, please click HERE.


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