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SSA resumes sending ‘no-match’ letters

After a break of four years, the Social Security Administration (SSA) has once again started sending “no-match” letters to employers notifying them that the Social Security number (SSN) reported on a W-2 form does not match an employee’s name in SSA records, according to a newsletter by McGuireWoods law firm (www.mcguirewoods.com/).

The new version of the letter differs in some significant respects from the previous version which was used until 2007. The new version does not include an insert from Immigration & Customs Enforcement (ICE) warning employers that failure to take action in response to a no-match letter could be construed as evidence of an employer’s constructive knowledge that it was continuing to employ an unauthorized worker. The new version also only lists one employee per letter, rather than providing information on multiple employees.

Although there is no current guidance for employers from ICE, the Office of Special Counsel for Immigration-Related Employment Practices of the Department of Justice (OSC) does offer some general guidelines for employers to follow in responding to no-match letters.

The guidelines explain that employers should not terminate workers based on receipt of a no-match letter alone, nor should they attempt to re-verify work authorization by requesting completion of a new I-9 form. Instead, OSC advises employers to provide workers a “reasonable period of time” to resolve any discrepancy in SSA records.

There are, however, no federal statutes or regulations in effect that define this reasonable period of time, says the newsletter. OSC advises that a “reasonable period of time” depends on “the totality of the circumstances.” The rescinded ICE guidance had allowed up to 90 days. For E-Verify purposes, SSA can put a tentative nonconfirmation of work authorization in place for up to 120 days, suggesting that might be a reasonable period of time to resolve discrepancies.

McGuireWoods has a Jacksonville office. To contact, call 904-798-3200.


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