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DHS Social Security No-Match Rules

Summary of Final Department of Homeland Security Rule

Summarized below are the key components of DHS’ final no match rule.
Following the summary is a detailed discussion of the background related to the rule, as well as a discussion of some of the practical implementation issues raised by it. Key components include:
 

  • Thirty days after the publication date of the final rule in the Federal Register it will become effective. The rule likely will be issued the week of August 13 and its effective date will be mid-September.
  • The rule and its prefatory comments are silent as to whether it applies to no match letters received prior to its effective date. The Assistant Secretary for Policy at DHS informed an employer group on August 10 that Social Security Administration (SSA) no match letters that normally would have been the winter/spring of 2007 were withheld pending issuance of the final rule and will be mailed to employers the first of September 2007. Thus, the effective date of the rule will coincide with the receipt of the 2007 SSA no match letters, and employers will be expected to follow the procedures set forth in the rule with regard to such no match letters.
  • Upon receipt of a no match letter from DHS or SSA, an employer will have to review the letter within 30 days of its receipt to determine whether it properly recorded the listed employees’ names and social security numbers (SSN) or alien documents. If the employer did not and made a clerical mistake, the employer is required to make the correction and file the corrected information with SSA or DHS within the 30-day time period. The employer must verify the corrections with SSA or DHS within the 30-day period. The proposed rule provided for only a 14-day period.
  • If the employer reported the information correctly on its I-9 or W-2 forms, the employer must confirm with the employee that the employee provided accurate information. If the employee did report the information accurately, the employer must ask the employee to ascertain and correct the problem with the appropriate agency. While the employer does not have a duty to solve the problem for the employee, the employer must inform the employee of the 90-day time frame within which the employee must provide verifiably legitimate documents.
  • The employer and employee have 90 days from the receipt of the agency letter within which to complete this process. The proposed rule provided for only a 60- day period.
  • If during the 90-day period the employee provides corrected information, the employer is responsible for verifying the correction with DHS or SSA.
  • If at the end of the 90-day period the employer cannot obtain verification from DHS or SSA that the document in question is acceptable, then the employer will have to take action to terminate the employee or face the risk that DHS may find that the employer had constructive knowledge that the employee was unauthorized.
  • If at the end of the 90 days the employer cannot obtain verification, it has an additional 3 days within which to complete a new I-9 Form for the employee, using the same procedures as if the employee were newly hired. In completing the form, the employer may not accept any document referenced in the written notice that is disputed. The employer must require that a document establishing identity or identity and work authorization contain a photograph.
  • An employer that follows DHS’ procedures will have a “safe harbor.” It will not be considered by DHS to have constructive knowledge that it employed unauthorized workers, unless DHS could prove independently that the employer had actual or other knowledge that the employee in question was unauthorized to work. The safe harbor would be available even if the worker later was determined to be unauthorized, assuming the employer followed the DHS procedures and could prove that it did so.
  • An employer that fails to follow the procedures set forth in DHS’ rule will be considered by DHS to have constructive knowledge that it employed unauthorized workers. This will influence DHS’ exercise of its prosecutorial discretion in deciding whether it will bring charges against employers that receive no match letters and do not follow up on them.
  • Employers that re-verify documents listed in no match letters will have a defense against discrimination allegations based on document abuse provisions of current immigration law.

To view the no-match rule online, go to www.dhs.gov.