October 2008

New Guidance for Social Security “No Match Letters”

On October 28, 2008, the Department of Homeland Security and Department of Justice released guidance on “no match letters” and a supplemental “safe harbor” rule for no match letters went into effect. The supplemental rule pertains to what employers can do to protect themselves after receiving a no match letter from DHS. Such letters issue when an employer reports employee social security numbers and for any number of reasons, the number does not match records of DHS. A no match letter notifies the employer that an employee may not be legally authorized to work in the United States. Such letters put the employer in the proverbial rock and a hard space. Such a letter may give the employer “constructive knowledge” that it is employing an illegal worker. Yet, terminating an employee because of a no match letter could invite a race or national origin discrimination lawsuit.

The DHS regulations provide that employers must respond to a no match letter within 90 days or will have violated immigration laws, and potentially found to knowingly employ illegal workers. The Department of Justice separately issued a guidance document to address employer concerns regarding discrimination. The document explains that an employer which responds to a no match letter as proscribed in DHS safe harbor rules, and does so consistently any time such a letter is received, will not likely be sued by the government for discrimination if the employee is terminated because legal status cannot be verified. DHS regulations and guidance documents can be found at www.dhs.gov.