Feds Enforcing Stricter “No-Match” Regulations on Employee Work Documents


On August 10, 2007, the Department of Homeland Security (“DHS”) announced new regulations that will require action by employers when they receive a “no match” letter from the DHS or the Social Security Administration (“SSA”), providing notice of potentially invalid employee social security numbers or other identity documents. The letters advise employers that they may have hired undocumented workers and may risk civil and criminal penalties. The new regulations, effective in September, outline the specific “reasonable” steps employers should take if they receive a “no-match” letter and want to retain the workers in question.

The regulations are one of several initiatives the Bush Administration has recently taken to strengthen immigration enforcement and hold employers accountable when they knowingly hire undocumented workers. The administration also intends to step up criminal investigations and impose tougher civil penalties for employers who engage in such practices.

“Safe Harbor” Procedures for Retention of “No-Match” Employees

The new regulations require action by an employer that wishes to retain employees about whom it has received either a “no match” letter from the SSA (with notice that social security numbers provided do not match agency records) or a letter from DHS highlighting problems with employment authorization documents used in completing I-9 forms. If an employer fails to respond to these letters via the regulations' specified “safe harbor” procedures explained below, these communications may later be used as evidence of the employer’s constructive knowledge that it was employing unauthorized aliens in violation of the Immigration and Nationality Act, 8 U.S.C. 1324a(a)(2) (“INA”).

To avoid potential liability under the new regulations, an employer should take the following “reasonable steps” upon receipt of the above communications:

1. Within 30 days of receipt, check its own records for clerical errors.

2. If the problem is not resolved by examination of the employer’s records, ask the employee to resolve the issue directly with the SSA within 90 days of the employer’s receipt of the letter.

3. If the employee cannot resolve the issue within 90 days, re-verify within the next three days (according to specific procedures set out in the new regulations) the employee’s authorization and identity. This process must be completed within 93 days of the employer’s receipt of the letter.

In addition to re-verification of employee documents as described above, the employer must also contact the local DHS office within 30 days to address any questions raised by the letter.

Consequences/Penalties for Noncompliance

If an employer retains employees without following the “safe harbor” procedures outlined above, the government may use the SSA “no-match” letter (or its DHS equivalent) as evidence of the employer's constructive knowledge that it has employed an unauthorized alien in violation of the INA. Ignoring no-match communications can expose an employer to a multitude of penalties, both civil and criminal. These penalties can be severe, especially in the case of repeat violations, with fines reaching as high as $10,000 per unauthorized employee, and/or a criminal sentence of up to six months in prison.