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Pending ‘No-Match’ rules put employers in difficult positions

by on
in Employment Law,Human Resources

The Social Security Administration (SSA) every year sends thousands of “no-match” letters to employers asking for help matching Social Security numbers (SSNs) with employee names. The SSA originally generated these letters to ensure that employees’ earnings were properly credited to their Social Security records, protecting their Social Security benefits.

Innocent discrepancies usually trigger no-match letters—misspelled names, name changes and database errors—and it’s up to employers to reconcile them.

From clarification to enforcement

In recent years, however, the U.S. Department of Homeland Security (DHS) has sought to transform the no-match letter system into a mechanism for enforcing laws against illegal immigration. In August 2007, DHS and the Bureau of Immigration and Customs Enforcement (ICE) issued new rules changing both the language of the no-match letters and the requirements for employers to respond to them.

Earlier this fall, a California lawsuit stopped DHS from enforcing the new rules.

The DHS rules would have made employers financially responsible under immigration and naturalization laws for continuing to employ workers who cannot fix discrepancies identified in no-match letters. Unauthorized immigrants often provide false SSNs to document their employment eligibility. DHS believes no-match letters are one way for employers to discover such fraud. The rules would have pressured employers to either remedy discrepancies or fire employees subject to no-match letters.

That would have put employers in a difficult position—as enforcers of the nation’s immigration laws.

Note: It is illegal to discriminate or retaliate against employees who receive no-match letters.

On hold—for now

The new rules were a lightning rod for criticism. They would have taken effect in mid-September, but a coalition of labor, business and civil rights groups sued to stop implementation. They argued the new DHS rules would lead to increased discrimination against foreign-born workers and require employers to enforce complicated immigration laws with no expertise and experience in that area. The suit contended many employers would simply fire immigrants rather than follow the new procedures. Additionally, it argued DHS did not have the legal authority to issue the rules without congressional action.

Two federal courts in California agreed, first issuing a restraining order and then a temporary injunction that prohibited DHS from enforcing the rules. On Nov. 23, the DHS conceded, asking the judge in the case not to act until March 24, 2008. A DHS representative said the agency would use the time to rewrite the rules to address a “small number of minor issues that the judge raised in his opinion.”

The SSA remains prohibited from sending no-match letters referring to the new DHS rules. A Social Security representative in mid-November said the agency would not send out no-match letters this year.

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