The Social Security Administration is issuing “no-match” letters to employers for the first time in seven years.
The letters indicate that the names and Social Security numbers listed on employee W-2 forms and Social Security records don’t match.
The SSA began sending no-match letters in 1993. It stopped in 2007 and reinstated the practice in April 2011 before discontinuing it again in 2012.
SSA shares the information with U.S. Immigration and Customs Enforcement, so the letters could result in ICE audits of employment eligibility verification I-9 forms.
Audits result in company fines, and employees must be fired if they are illegal immigrants.
Last year, SSA sent notices to employers saying no-match letters, formally called Employer Correction Requests, would be resumed this year but did not say why other than accuracy.
The letters raise the legal issue of “constructive knowledge” for employers that has not been definitively answered by lawyers or courts, said Dan Fazio, director of the Northwest farm labor association WAFLA.
Constructive knowledge means an employer should be able to infer from information available to them that a worker lacks legal work authorization.
Employers who knowingly employ people who are not authorized to work in the U.S. are in violation of immigration laws and could be criminally prosecuted and fined, according to Richard Stup, a Cornell University agricultural workforce specialist.
The Bush administration created a “safe harbor” rule protecting employers against cases of constructive knowledge, but the Obama administration did not defend the rule and it ultimately was thrown out, Fazio said.
No-match letters should not be ignored because ICE could consider an employer to have constructive knowledge, Stup wrote in the Cornell Agricultural Workforce Development online newsletter.
The letters may prompt audits but employers should not suspend or fire employees based on them because they could be sued for discrimination, Stup wrote. Discrepancies in names and Social Security numbers could be caused by name changes, clerical errors, identity theft or falsification.
Unlike letters of years ago, the new letters don’t include the names or Social Security numbers that are in error. Employers have to log into SSA’s Business Services website to learn which employees are referenced.
Employers should then check their personnel records to determine if there was a clerical error and if it can file corrections, Stup wrote. If no error is found, employers should try to resolve the issue with the employee and document what they find, he wrote.
WAFLA is providing its members with three sets of guidance, depending on how much risk they want to take, Fazio said.
“The bigger picture is that employers are tired of being held responsible for the failure of Congress to pass immigration reform for the past 20 years,” Fazio said. “Everyone knows jobs are a magnet for undocumented immigration and that there are lots of undocumented people working in the U.S.”