Proposed rules on Social Security "no match" letters

The Department of Homeland Security has issued a proposed rule that would address employer obligations when notified that an employee's social security number appears to be invalid or to not match the employee.

The proposed rule can be found here. Public comment is due by August 14, 2006.

The proposed regulation addresses two different situations: the employer receives a "no match" letter from the Social Security Adminsitration asserting that the employee's social security number appears to be invalid or the employer receives a similar letter from the Department of Homeland Security related to immigration status. Importantly, the proposed rule would provide a "safe-harbor" procedure giving the employer a clear rule on what it is supposed to do to avoid liability.

The proposed regulation would require employers to:
a) promptly check their records on receipt of a no-match letter to see if the problem is simple clerical error - such as a misspelled name or transposed digits in the social security number. If so, the employer would be required to correct its records, and inform the relevant agency. These steps would have to be completed within 14 days.

b) If not resolved as in (a), the employer would have to request the employee to confirm that the information is correct. If the employer's records are not correct, the employer would have to take prompt action to correct and then verify with the relevant agency. This may require the employee to take the matter up directly with the relevant agency. Again, the employer would need to act within 14 days.

c) if not resolved as in (a) or (b) within 60 days, the employer would have to follow a new verification procedure, essentially completing a brand new I-9 form as if the employee were newly hired. If the employer cannot verify the employee's status, then the employer must either choose to dismiss the employee or face the risk of sanctions for employment of an unauthorized alien.

Since the I-9 law and rules include non-discrimination provisions, employers will have to apply the same process uniformly to all employees that are the subject of no-match letters.