Department of Homeland Security Issues Supplemental Final No-Match Letter Rule

By Ronald G. Guerra

On October 23, 2008, the Department of Homeland Security ("DHS") issued its long-awaited supplemental final rule for employers who receive a no-match letter from the Social Security Administration ("SSA") or a Notice of Suspect Documents letter from the DHS.

The supplemental final rule is the same as the prior August 2007 version but with two minor changes. The August 2007 rule stalled when a consortium of unions and business groups obtained a preliminary injunction in the U.S. District Court for Northern California. The supplemental final rule was published in the Federal Register on October 28, 2008, and became effective upon publication. However, DHS acknowledges that it must obtain the court's approval before it may implement the supplemental final rule. For this reason, it is unlikely that the preliminary injunction will be lifted before a new president takes office.

The supplemental final rule describes steps employers should take to avoid potential civil and criminal liability upon receipt of a no-match letter. The supplemental final rule does not apply to employees hired prior to November 6, 1986, even if a no-match letter is received. The basic steps for employers to follow include:

1. Verify within 30 days that the mismatch was not the result of a record-keeping error on the employer's part. If so, correct and communicate the corrected information to SSA.
2. If not resolved in step 1, notify the employee within 5 business days and request that the employee confirm the accuracy of employment records within 90 days of the date of the receipt of the no-match letter. This may include the employee resolving the issue with SSA directly.
3. At the end of the 90-day period if the mismatch is not resolved, the employer will have 3 days to complete a new I-9 form with the employee. Employees and employers may not use the questionable SSN in completing a new I-9 form. Attach the new I-9 form to the original I-9 and retain the I-9 documents for the retention period required (3 years after date of hire, or 1 year after date of termination, whichever is longer). We recommend that Form I-9 documents be maintained in a separate file from individual employee personnel files.

SSA is not changing its procedures for issuing no-match letters, and SSA guidance on how to correct SSA records remain unchanged. The supplemental final rule provides a safe-harbor to employers that follow the procedures outlined in the rule. If the employer follows the procedures, the DHS will not use SSA no-match letters to find "constructive knowledge" of the employment of undocumented workers.

If an employer does nothing to resolve the mismatch or does not act in good faith, the employer may be liable for employing an unauthorized worker. An employer could then face stiff civil or criminal penalties and sanctions. Employers should follow a similar procedure when responding to a Notice of Suspect Documents letter from DHS.

DHS has placed a high priority on worksite enforcement. Arrests for criminal violations of the immigration laws have increased from 24 in FY 1999 to a record 1,101 in FY 2008. There have also been 5,173 administrative arrests for violations of immigration laws during FY 2008.

This is a brief summary of the supplemental final rule. A more detailed analysis and recommendation is available here.

Published October 30, 2008

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

BACK TO TOP | BACK TO ARTICLE INDEX | PRINTER-FRIENDLY PAGE