In recent months there have been two major changes in the employment eligibility verification procedures required of employers. The first change was the August 15, 2007, issuance of the U.S. Department of Homeland Security final rule regarding the appropriate response by an employer to a Social Security “No-Match” letter. A “No-Match” letter refers to the letter notifying an employer that the name and social security number reported on its W-2 form for an employee do not match the SSA’s records.
Please note that implementation of this final rule is currently enjoined by order of the Federal District Judge Charles Breyer issued on October 7, 2007. Thus, while a response consistent with this guidance is not specifically required until the injunction has been removed, the guidance provided by this rule is illustrative of measures employers will eventually be required to follow.
First and foremost you should take reasonable steps to resolve the “No-Match” situation and apply these reasonable steps uniformly to all employees listed in the received SSA letter. The DHS rule advises employers to utilize the following “safe harbor” procedure:
1. Promptly (no later than 30 days) check your records to ensure that the mismatch was not the result of a transcription error;
2. If this does not resolve the problem, ask your employee to confirm the accuracy of your records;
3. If necessary, ask the employee to resolve the issue with SSA;
4. If you were able to successfully resolve the no-match, make sure you have followed all of the instructions in the received SSA letter. You should also verify that the correction has been made by using the Social Security Number Verification System (SSNVS) administered by SSA, and retain a record of the date and time of your verification. SSNVS can be accessed through http://www.ssa.gov/employer/ssnv.htm or by telephone at 1-800-772-6270; and
5. If none of the foregoing measures resolves the matter within 90 days of receipt of the SSA’s letter, you should complete, within three days, a new I-9 Form as if the employee in question was newly hired, except that no document may be used to verify the employee’s authorization for work that uses the questionable Social Security number and no document may be used to verify the employee’s identity that does not have a photograph of the employee.
If you cannot confirm that the employee is authorized to work (by following the above procedures), you risk liability for violating the law by knowingly continuing to employ unauthorized persons.
In addition to the issuance of the final rule regarding “No-Match Letters,” on November 7, 2007, U.S. Citizenship and Immigration Services announced issuance of a new Form I-9 Employment Eligibility Verification form. This form is now fully compliant with its 1996 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and eliminates a series of previously acceptable documents for proving employment eligibility and identity. The new version of the I-9 form will be required as the only acceptable version effective December 26, 2007.
For more information on immigration law, please contact Matt Gunn with Frost Brown Todd at mgunn@fbtlaw.com or 502-568-0321.
