Department of Homeland Security Rescinds the Bush No-Match Rule

There is still confusion concerning knowledge of illegal immigrants in the workplace. ANLA provides some tips for employers.

November 30, 2009
Industry News

In 1986, Congress made it unlawful for an employer to knowingly employ a person not authorized to work in the United States. It also provided for a paper-based employment verification system now known as Form I-9. The I-9 Form became the basic means of verifying employment authorization.

As experience with the I-9 form grew, Congress, immigration enforcement agencies, and employers became aware that it was vulnerable to identity fraud. A common form of fraud was the use of a social security number that either did not exist or belonged to someone other than the employee presenting it.

For many years, the Social Security Administration sent letters to employers and affected employees alerting them when the name and social security number submitted by the employer did not match a name and social security number in SSA’s database. These letters were known as “no match” letters. The SSA stated that the fact of a discrepancy did not necessarily mean that the employee was using a false social security number or that the employee was not authorized to work. SSA said that the letter merely indicated that a discrepancy between its records and the information submitted existed.

In spite of SSA’s assurances, the former INS (now ICE) came to view the no match letter as an immigration document that had direct implications for immigration enforcement. Such a letter, it said, along with other circumstances could support an inference that the employer had “constructive knowledge” that a person it was employing was unauthorized.

Employers faced a dilemma. By following the SSA’s statements, they were exposed to sanctions and criminal penalties from ICE for continuing to employ an unauthorized worker . By treating a no match letter as evidence that a person was unauthorized, they risked charges of discrimination and document abuse. Confusion reigned.

After several years of this confusion, the Department of Homeland Security (DHS), the agency of which ICE is a part, proposed a regulation stating how an employer was to respond to no match letters. It stated that if an employer received a no-match letter from the SSA and took a series of specified steps within a series of specific time frames, ICE would not deem the employer to have constructive knowledge of a worker’s undocumented status based on the no-match letter alone. This rule was challenged in court and a court issued an order preventing therule from taking effect. The court also prohibited SSA from issuing no-match letters to employers.

While the court case was pending, DHS attempted to fix the legal problems with its rule. To do this, it sought comments from the public and later issued a new rule. Before the legality of the new rule could be resolved, the Obama Administration came into office. Its policy differed from that of the previous Administration. It decided to emphasize participation in the E-Verify program, an electronic work authorization verification system, rather than the no match rule approach. It proposed rescission of the regulation issued by the Bush Administration. While ANLA supported withdrawal of the rule during the public comment period, it asked that DHS clarify the legal status of no-match letters should SSA begin issuing them again. DHS did formally rescind the not match rule, but did not provide the legal clarity ANLA sought.

It is unlikely that a new rule or other guidance will be forthcoming in the near future. It is also unclear if the SSA, which stopped issuing no match letters to employers during the pending litigation (employee no match letters still were sent), will resume doing so and if so, when.

The result of all of this activity is that employers are back in the situation they were before DHS/ICE first proposed its rule. In rescinding the rule, DHS did not clarify the legal status of no-match letters. A no-match letter may be an immigration document or it may be just a wage-reporting document. It may be evidence that a worker is employed illegally or it may not depending on the circumstances. Employers still may face discrimination lawsuits for being
overly zealous in complying with their obligations under the immigration laws and face civil and criminal sanctions for not being zealous enough.

If SSA begins reissuing no-match letters this winter, employers will ignore them at great risk. ICE enforcement officials and plaintiff lawyers bringing immigration-related RICO lawsuits routinely seek no-match letters and related personnel documents in their efforts to establish that employers had constructive knowledge they were hiring unauthorized workers.

Employers should consider taking certain practical steps when they receive no-match letters, including the following:
• Adopt a written policy for handling no-match letters and apply it uniformly and consistently. An employer’s best defense against any kind of charge is a well-thought through policy that is applied consistently. This demonstrates to government agencies that the employer takes the law seriously and attempts to comply.
• Provide employees a copy of the no-match policy if their name appears on a no-match letter, directing steps they are required to take and the time have to take those steps. Place copies of the letters in the employee’s personnel file. Follow up with the employee to ensure they comply with the policy.
• Remember that there are good reasons for a no match and suspicious ones.
-Did the employee provide a good reason for the discrepancy? Was there are name change that was not recorded properly? Is the employee’s name difficult to spell? Was a number transposed in the documents submitted to SSA? Suspicious reasons or responses run the gamut from a man changing his name to workers who offer no explanation at all.
-Did the worker show up on a subsequent no-match letter after having allegedly corrected the problem after being listed on a previous one?
-Workers should be given a short, but reasonable, time to deal with SSA to correct the discrepancy. Taking into account the totality of the circumstances (e.g., a longer time may be reasonable in an instance of bureaucratic delay), consideration should be given to suspending the employee without pay or termination after an employee has had enough time to correct the problem and fails to do so or shows up on more than one no-match letter. Documentation of any action taken or not taken against an employee should be maintained in his/her personnel file.

With the withdrawal of the no-match rule, law-abiding employers continue to face challenges in complying with the immigration laws relating to unauthorized employment. Fraud is rampant. Government agencies have different ideas about, and give different directions concerning, important practical questions; and it appears that further guidance will not be forthcoming any time soon. The best an employer can do now is to adopt a cautious and
consistent policy of responding to suspicious circumstances by investigating and making employment decisions based on the facts as it finds them during the investigation.