DHS Reissues its “No-Match Letter” Regulations

by Steve Bogue

Bogue, A. Stevenson
(402) 341-3070

The Department of Homeland Security (DHS) previously issued regulations addressing “no-match letters” i.e. when an employees’ social security number does not match the employee’s name.  The letters are issued on a yearly basis by the Social Security Administration (SSA).

The original regulations were issued in August 2007.  In October 2007, a federal court in California issued a preliminarily injunction halting the implementation of the regulations because of the failure of the DHS to properly analyze the impact of the regulations, and the failure to follow certain required procedures prior to issuing the regulations.  The DHS then asked the court to postpone a hearing on the final injunction while it reissued the regulations.  On March 26, 2008, the regulations were reissued and are, essentially, unchanged with a few minor exceptions.

The regulations require that employers take specific steps with employees whose social security numbers are listed in the “no-match letter.”  Their significance lies in the fact that the employer’s failure to take such actions allows Immigration and Customs Enforcement (ICE) to use the employer’s receipt of a “no-match letter” as evidence that the employer had “constructive knowledge” that the employees listed in the letter were not authorized to work.  The regulations include “safe harbor” provisions an employer should follow after receiving a “no-match letter”, in order to avoid liability for the known hiring of unauthorized employees.  If an employer wishes to protect itself, it will be required to terminate employees not able to resolve satisfactorily the “no-match” between their social security number and their name.

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