Employers Receiving 'No-Match' Letters From Social Security

Any immigrant with a work permit, green card, or other right to work in the United States is, before starting to work, expected to apply for a Social Security number (SSN). That allows their employers to put a portion of the employees wages into the Social Security system, which the employee may eventually draw on for retirement or disability benefits.

However, undocumented immigrants do not receive Social Security numbers and sometimes give false numbers to their employers when seeking work. Thats why difficult times may lie ahead for both employers and workers, as the Social Security Administration (SSA) has, after a break, again started sending employers "no match" letters concerning employees whose Social Security numbers dont match their name in the SSA database. Thousands of letters are expected to go out.

This process caused much confusion the last time around, in part because some employers took this to mean that the government had caught them hiring an illegal immigrant and that they should fire the person immediately (or else risk being penalized for knowingly hiring someone who had no authorization to work).

The Department of Homeland Security (DHS), which controls immigration enforcement matters, added to this earlier confusion by issuing regulations telling employers how to qualify for "safe harbor" protection from prosecution if they got a no-match letter. Basically, employers were to check their own records for errors, ask employees to take care of the problem, and if it couldn't be resolved, fire the employee. These regulations were, however, eventually challenged in court, and never went into effect (the judge issued an injunction). DHS rescinded the rule in 2009.

The SSA is not part of the immigration enforcement process. It says that it sends these letters in order to enlist employers assistance in correcting our records to ensure that you receive credit for all your work when you apply for benefits."

The current round of no-match letters from SSA actually reminds employers not to take action against employees strictly on the basis of the letter, which could leave employers open to claims of discrimination. The letters tell employers to first check their records and, if they cant figure out the problem (for example, discover an error in the employers own reporting or a name change by the employee), instruct the employee to contact SSA. Then the employer is supposed to give the employee a "reasonable period of time" to resolve the problem. So far so good but then things get a bit unclear.

For starters, what period of time is considered to be "reasonable" is, unfortunately, not defined anywhere. However, SSAs letter also states that applicants usually wait at least two months for a new or replacement Social Security card, so that seems like a safe starting point.

Then, according to the SSA, if the employer cant resolve the issue, either because the employee leaves or is unable to provide a new card, the employer is expected to document its efforts and keep the documentation for four years. But what should be the substance of the employers efforts? Whether the employer should -- or shouldnt -- terminate the persons employment in the latter case is unclear. Lets hope the government issues further guidance on this -- and soon.