For the first time in more than a decade, the Social Security Administration began mailing so-called no-match letters–formally known as Employer Correction Requests–to hundreds of thousands of U.S. companies in March. The letters notify employers they have at least one name and Social Security Number combination submitted on a Form W-2 that does not match the SSA’s records. Employers are instructed to register for the agency’s Business Services Online and correct the mismatch within 60 days.
The practice dates back to 1993, when such letters were issued to both employers and employees on an annual basis, ramping up following the terrorist attacks of Sept. 11, 2001. The SSA stopped sending no-match letters to employers in 2007 after a failed attempt by the Homeland Security Department to issue a regulation governing use of the letters for immigration enforcement. Letters continued to be sent to employees until 2012, when they were halted altogether.
Democrats and immigration-advocacy groups have raised suspicion that the motivation for the letters lies in the Trump administration’s determination to ferret out undocumented workers. Although he “wouldn’t be surprised if there’s a link there,” Doug Kauffman, partner at Balch & Bingham LLP, has yet to see any “concrete evidence” the letters are related to Trump’s immigration crackdown. Rather, he feels the SSA has revived the practice simply because its ability and resources to identify no-match situations has increased. That said, he cautions that Immigration and Customs Enforcement is unlikely to look favorably upon an employer that has failed to respond to such a letter if an immigration issue arises at a future date.
“ICE might take the position that the employer has not acted in good faith, especially if the impacted individuals turn out not to be authorized to work in the U.S., which could have an impact on the amount of fines,” says Kauffman.
While some attorneys tell clients they can “set the letters aside” because they don’t identify the affected employees, instead requiring the employer to go online to access that information, Kauffman says, an employer should never ignore a no-match letter. Likewise, they should never assume a mismatch is an indicator of fraud or an immigration violation. Much of the time, it is merely the result of a clerical error or name change due to marriage, divorce or other factors. Therefore, it’s imperative the employer not view the situation as just cause to fire the employee.
Kauffman recommends employers begin with a review of their own records to determine if an internal error is to blame. If that doesn’t appear to be the issue, they should then reach out to the employee, inform them of the notice and give them the opportunity to remedy the mismatch. If they cannot, the employer then faces a tough decision.
“Ultimately, if you can’t get the issue resolved, you’ve got a decision to make,” says Kauffman. “I don’t think anything requires you to terminate the employee if they don’t get it resolved, but you are taking a risk if you don’t.”
