SSN No-Match Letters Return

​For the first time in seven years, employers are receiving Social Security number (SSN) no-match letters from the Social Security Administration when it has discovered that the W-2 records submitted by the employer don't match the administration's records on employee names and SSNs. This is a warning to employers to carefully check the employee's information. The problem could be as innocent as a typo or as serious as a stolen identity.

The Social Security Administration has given employers an overview of frequently asked questions and steps to take upon receiving a mismatch letter, also called an "employer correction request notice."

Tread Carefully If You Get a Letter

The letters don't include the names and Social Security numbers of employees with mismatched SSNs, as they had in the past. Employers must register online with the Social Security Administration's Business Services Online (BSO) to find out whose SSNs are mismatched.

If an employer learns of SSN mismatches and does nothing, then U.S. Immigrations and Customs Enforcement (ICE) may consider the employer to have "constructive knowledge"—a fact an entity should have known—that it has an unauthorized worker. But if employers take adverse action against an employee based solely on no-match letters, they may be sued for discriminating against the worker based on citizenship.

The Social Security Administration began sending no-match letters to employers in 1993. Facing increased immigration enforcement, employers sought guidance on how they should respond. The George W. Bush administration issued a regulation that provided procedures for employers to follow when they received no-match letters and a safe harbor to companies that followed these rules. But the regulation was held up in litigation and rescinded in 2009 during the Obama administration. In 2012, the Social Security Administration stopped notifying employers about SSN mismatches.

The Trump administration began sending the letters again this spring to strengthen the enforcement of immigration laws, said Richard Alaniz, an attorney with Cruickshank & Alaniz in Houston. The safe harbor, however, has been eliminated.

What to Do After Receiving a No-Match Letter

After receiving a no-match letter, Alaniz said that employers should:

• Check their records for a clerical error.
• Notify the employee of the mismatch.
• Give the employee a reasonable period of time to resolve the mismatch with the Social Security Administration.

Alaniz said a "reasonable period" could be between 30 to 90 days, but Otieno Ombok, an attorney with Jackson Lewis in White Plains, N.Y., called the time period a "gray area" because the relevant agencies have different interpretations of what is a "reasonable period."

If the employee cannot resolve the mismatch with the Social Security Administration, the employer often will fire the worker, Alaniz noted.

However, Ombok cautioned against that approach as it is expressly prohibited by the Social Security Administration, which tells employers in the no-match letter not to take any adverse action against an employee based solely on the letter. He said employers should not panic when they receive mismatch letters but should take action based on a sound action plan. Tell the employee about the mismatch and work with the employee to have the matter resolved. If the employee doesn't respond within the time frame given by the Social Security Administration (60 days), tell the Social Security Administration that, he noted.

He said that when employees have engaged in identity fraud and are discovered through a no-match letter, they often will disappear. Sometimes, they will even admit to giving fraudulent SSNs, in which case employers may have to take action based on their onboarding honesty policies, if any.

An employer should not stick no-match letters in a file folder and do nothing, cautioned Bernhard Mueller, an attorney with Ogletree Deakins in Columbia, S.C. Employees who need to resolve SSN mismatches may need time off work to resolve the issue in person, he noted. However, an unauthorized employee is not likely to go the Social Security Administration but instead might ask the employer for extension after extension to resolve the matter, hoping the company will forget about the SSN mismatch.

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Agencies share information, Ombok said. The Social Security Administration may alert the Department of Homeland Security to which employers have received no-match letters, he noted, and ICE subsequently may conduct an audit.

Cause of Mismatch Letters

The cause of mismatch letters may be falsification, identity theft or a completely fabricated SSN.

"False identities are easy to purchase," Alaniz noted. "If you're desperate for employment, you'll find a way to get them."

But the mismatch could be due to a marriage or divorce if the married or divorced employee did not notify the Social Security Administration of the name change, Ombok noted. Or it could be the result of a digit that the employer transposed.

One way to avoid most SSN mismatches is to use E-Verify, Mueller said. E-Verify checks the names, dates of birth and SSNs of new hires against the Social Security Administration's database.

E-Verify can't catch cases of identity theft, when someone steals someone else's name, date of birth and SSN to obtain unemployment and disability benefits. But E-Verify should prevent most SSN mismatches with the Social Security Administration, he said.

[Visit SHRM's resource page on workplace immigration.]