IMPORTANT NEW GUIDELINES FOR NO-MATCH LETTERS

In a prior E-Newsletter regarding immigration laws, we noted that the Department of Homeland Security (DHS) had proposed a new regulation that would provide guidelines to employers for responding to no-match letters from the Social Security Administration (SSA). On Friday, August 10, 2007, Secretary Michael Chertoff of DHS announced that a final rule would be published immediately on that topic, providing employers with a roadmap, or safe harbor, to avoid penalties, sanctions and possible criminal prosecution related to the employers’ hiring of illegal aliens. The final rule is entitled "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" and will reportedly become law on or about September 10, 2007. Subsequent no-match letters from SSA will be accompanied by a letter from U.S. Immigration and Customs Enforcement (ICE) setting forth the new response guidelines, which are summarized as follows:

(1) Review the employer’s records within 30 days of receipt of the no-match letter to verify whether the problem is based on a record keeping error by the employer;

(2) Have the employee confirm the accuracy of his or her employment records; and

(3) If not resolved, direct the employee to resolve the no-match problem with SSA within 90 days of the employer’s receipt of the no-match letter.

(4) If the problem is resolvable after taking the steps above, follow the instructions provided in the no-match letter by SSA, correct the information with SSA, and verify the correction by using the Social Security Number Verification Service (SSNVS). SSNVS can be accessed through http://www.socialsecurity.gov/employer/ssnv.htm or by telephone at 1-800-772-6270. The employer should keep a record of the date and time the correction was verified with SSA.

(5) If the problem is not resolved within 90 days of receiving the no-match letter, a new I-9 Form should be completed within three days, with I-9 required documents (e.g. a U.S. Passport or DHS Permanent Resident Card). These should be documents that do not use the Social Security number in dispute. The employee must also provide a document that contains a photograph to establish identity or both identity and employment authorization.

Secretary Chertoff announced that if an employer follows the new guidelines and the employee’s no match problem remains unresolved, the employer should then terminate the employee. If an employer does not terminate such an employee, the employer risks that it will be found to have knowingly hired illegal aliens in violation of the law. The final rule provides that while employers “are free to develop other reasonable methods for resolution of SSA notices,*** they face the risk that DHS may not agree that their methods are reasonable.”

If you would like more information about these new guidelines and the implementation of appropriate employment policies and practices to conform with the new guidelines, please contact Randall L. Duncan, Chair of our Closely Held Business Team, or Robert A. Kerr, a partner in Dunn Carney’s employment law practice group. We will be happy to accommodate your request.

Closely Held
Business Team

The Closely Held Business Team - Dunn Carney is dedicated to assisting business owners in navigating through the opportunities and challenges the law presents to advance each owner’s success in business. They understand the multifaceted issues business owners face each day and the need for responsive and proactive legal counsel.

Team members include:
Randy Duncan, Team leader
Bob Allen
John Barhoum
Merrill Baumann
David Buono
Brian Cable
Jack Cooper
Ken Davis
Tim Hering
Frank Hilton
Elizabeth Howard
Scott Jonsson
Robert Kerr
JoDee Keegan
Kelly Martin
David Rossmiller
Kyle Stinchfield
Dan Vidas
Matt Wilmot
Bob Winger
David Zehntbauer