Match Point!

As many HR professionals already know, there may be many reasons why an employer might receive a 'No-Match' letter from the Social Security Administration. When filing a new employee's W-2 form, sometimes a typographical error is made - or perhaps the employee recently changed her name and the SSN does not 'match' the person identified in the W-2 form. Maybe the database is erroneous.

As immigration has come under increased scrutiny, the federal government has taken the position that it might be evidence that an employer has knowingly hired an illegal alien. (It is, of course, against the law to knowingly hire an illegal alien.)

A mismatched social security number may be proof that a document has been forged or an SSN stolen. Accordingly, in 2007 and 2008, a federal rule was amended to, in effect, create a presumption that receipt of a 'No-Match' letter was notice to the employer that an employee was unauthorized to work in the U.S. - unless an employer took certain steps to prove that an employee was not an illegal alien (called a 'safe harbor').

Before the rule took effect, an injunction was granted by a Federal Court preventing the implementation of the 'No-Match' amended rule.

Then, last Wednesday the Obama adminstration rescinded the 'No-Match' amended rule. Effective November 6, 2009, an employer will not be obligated to follow the 'safe harbor' steps to avoid the presumption of having knowingly hired an illegal alien.

That being said, the receipt of a 'No-Match' letter from the Social Security Administration is still something that should be dealt with cautiously - because it still might mean that you have unwittingly hired an illegal alien.

Dizzy

As Laura reported in her recent blog on July 21, 2009, it appears that the ‘No-Match’ rules may never see the light of day.

The history of this rulemaking effort can be dizzying, but here’s an attempt to reveal the significance of this decision by the Obama administration to eliminate the confusion:

First, we all know that federal law prohibits the knowing employment of a foreign individual who is not authorized to work in the U.S. If, when hiring any new employee, the employer sends in a W-2 with a SSN that does not match the Social Security Administration’s records, the SSA will send back a letter notifying the employer that the records do not match. In August 2007, a proposed regulation from the Department of Homeland Security implied that simply receiving one of these ‘No-Match’ letters from the SSA could be constructive knowledge that the employer had hired an undocumented worker.

Now there may be many reasons why there is no ‘match’ in SSNs, including typographical errors and name changes, but under the regulations, an employer receiving a ‘No-Match’ letter had to immediately undertake a number of procedures to prove that it had not knowingly hired an undocumented worker (known as ‘safe-harbor’ procedures).
The same month that the final rule was issued, suit was filed in a California federal court to prevent enforcement of the rule. The Department of Homeland Security took the opportunity to revise the rule, but the revised rules did nothing to change the ‘safe harbor’ procedures. A preliminary injunction was granted by the court and the rule has yet to be enforced.

On August 19, 2009 the Department of Homeland Security issued a proposed a new rule rescinding the previous rule and reinstating the language of the rule as it existed before 2007. Comments on this proposed rule will be accepted until September 18, 2009. Expect the new rule to be published shortly thereafter.

So where does that leave us now? Stay tuned for more ideas… (See Laura’s July 21, 2009 blog for a hint).