Employers Get Ready: DHS Issues Supplemental Final No-Match Rule

On October 23, 2008, the Department of Homeland Security
("DHS") issued its Supplemental Final Rule aimed at employers who receive Social Security Administration ("SSA") "no-match" letters. This Supplemental Rule was issued as the result of a U.S. Federal District Court's 2007 decision to stop the implementation of DHS's initial No-Match Rule. The No-Match Rule clarified steps employers should take to resolve discrepancies identified in no-match letters in order to avoid liability for "knowingly" hiring unauthorized workers under the Immigration Reform and Control Act ("IRCA"). DHS now seeks to have the Court lift the 2007 injunction so that implementation of the No-Match Rule may proceed.

In March 2008, DHS published its Supplemental Final Rule specifically to address the Court's concerns. The Supplemental Final Rule includes a more detailed analysis of how and why DHS developed its policy change with respect to no-match letters, along with an economic analysis of the rule. The rule itself has not changed. If the Court lifts the injunction, employers who receive no-match letters must be prepared to follow DHS's safe harbor guidelines set forth in the No-Match Rule to ensure against being found to have knowingly hired unauthorized workers.

The following are the steps to follow to comply with DHS's safe harbor guidelines:

(1) The employer should review its records within 30 days of receipt of the no-match letter to verify whether the problem is based on a recordkeeping error by the employer.

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

(3) If not resolved, direct the employee to resolve the problem with the SSA within 90 days of 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 the SSA, correct the information with the 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 the SSA.

(5) If the problem is not resolved within 90 days of receipt of the no-match letter, a new I-9 form should be completed within three days, with I-9 required documents, excluding documents that 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.

If an employer follows these steps and the employee's no-match problem remains unresolved at the end of 93 days from receipt of the no-match letter, the employer should terminate the employee. If an employer does not terminate the employee, the employer risks being found to have knowingly employed unauthorized workers in violation of the law and may be subject to both civil and criminal penalties under IRCA.

If you have any questions or issues regarding no-match letters, please let us know. We will keep you informed as the court determines whether to lift the injunction and allow the No-Match Rule to be implemented.

The Final Supplemental Rule can be found and reviewed in its entirety by clicking this link:

Employment and Labor Law Team

Leader:Tamsen Leachman
Bob Allen
Tim Bernasek
Jack Cooper
Elizabeth Knight
Kelly Martin
Renee Stineman

October 08