Department of Homeland Security May Enact Proposed Rules Within the Next Few Days That Would Change Employers' Obligations When In Receipt of "No-Match" Letters

The Los Angeles Times reports today that the Department of Homeland Security may implement its proposed rules clarifying employers’ obligations when in receipt of a “no-match letter” within the next few days.

The proposed rules, if actually enacted, clarify what steps employers need to take when in receipt of a no-match letter in order to avoid being deemed to have constructive knowledge of an employee’s unauthorized work status. The Department of Homeland Security proposed rules can be read here.

Employers annually send the Social Security Administration (SSA) millions of earnings reports (W-2 Forms) in which the combination of employee name and social security number (SSN) does not match SSA records. In some of these cases, SSA sends a letter that informs the employer of this fact. The letter is commonly referred to as a ``no-match letter.'' There are many causes for such a no-match, including clerical error and name changes. But one of the causes is the submission of information for an alien who is not authorized to work in the United States and is using a false SSN or a SSN assigned to someone else. Such a letter may be one of the only indicators to an employer that one of its employees may be an unauthorized alien.

Specifically, the proposed rule would add two additional examples of when an employer will be found to have constructive knowledge of an employee’s unauthorized work status. Those two examples are: (1) failure to take reasonable steps after receiving a no-match letter from DHS; and (2) failure to take reasonable steps after receiving a no-match letter from SSA.

If the rules are enacted, employers are urged to read the regulations in order to learn of their new obligations.