ILRC Letter on No-Match Rule

May 6, 2008

Here is a letter from the Immigrant Legal Resource Center to Employers regarding DHS’ No-Match Rule on Social Security Numbers

Re: DHS’ “No-Match” Rule Has Been Enjoined — Effect on Employers’ Liability

Dear Employer:

The purpose of this letter is to inform you that the Department of Homeland Security (DHS) has abandoned its attempt to enforce its no match rule that would improperly use social security records for immigration enforcement. On November 23, 2007 in a in federal court in San Francisco, DHS requested that a lawsuit challenging the rule be put on hold until March 2008. The government has recently published a proposed revised rule in that it hopes will pass legal muster. The new rule, however, is substantially the same as the rule which the court previously enjoined. Previously, in October, 2007, the U.S. Federal District Court had issued a preliminary injunction against enforcement of a new Department of Homeland Security “No-Match” rule that would have increased employers’ liability for allegedly knowingly employing a worker who is not authorized to work in the United States. DHS is also appealing to the Ninth Circuit federal court the preliminary injunction which the federal district court judge ordered.

The Department of Homeland Security (DHS)’s new immigration enforcement scheme, which was to have begun in September, would have put employers at greater risk of being fined if they continued to employ workers who had Social Security Numbers (SSN) that did not match the records of the Social Security Administration (SSA) if the workers could not rectify the “No Match” within 93 days from the date of the SSA letter advising the employer of the “No Match” situation. As a result of the preliminary injunction and the withdrawal of its own rule, DHS is prevented from implementing its intended new policy, at least until the final decision is made by the U.S. District Court. Therefore, until and unless the Court lifts the injunction of the upcoming DHS rule, an employer faces no increased risk of being fined by DHS if the employer continues to employ a worker whose Social Security number does not match the SSA records.

The current system and what the “no-match” rule would have done

For years, companies have received “no-match” letters informing them that some of their workers’ Social Security numbers don’t correspond with their names. Companies have not been required to do anything after receiving the letters; the only time they have been required to confirm a person’s immigration status is at the moment of hiring. However, the DHS’ now withdrawn rule sought to change a company’s obligations. Upon receiving a “no-match” letter, an employer would have had to check that the cause of the problem was not a name change, spelling mistake, or other simple error. If the problem could not be quickly resolved, it would have been up to the worker to contact the Social Security Administration and fix the error. After three months, if the “no-match” had not been resolved, the employee could have been fired. Otherwise, the company could have been subject to fines for “knowingly” employing people without the legal right to work in the U.S.

The withdrawn rule would have established that an employer who continued to employ a worker with a “No-Match” Social Security number would be deemed to have “constructive knowledge” that the employee was not authorized to work in the United States. An employer who has knowledge that an employee is unauthorized to work is subject to fines by the DHS pursuant to Immigration and Nationality Act sections 274A(a)(1)(A) and (h)(3), 8 U.S.C. sections 1324a(a)(1)(A) and (h)(3). An employer could be fined $2,100 per worker.

The rule is completely blocked – Employers face no increased liability during this period

Since it was blocked by the judge and the DHS has withdrawn its rule, the rule cannot be enforced. This means that no employer can be considered to have “constructive” knowledge that an employee is unauthorized to work because the employer continues to employ a worker with a “No-Match” Social Security number. This means that no employer will be at an increased risk of being fined. In the coming months or year, the court will hold a formal trial on the issue, when it will consider the upcoming rule. However, that decision may be more than a year down the road. There is a significant chance that the plaintiffs will prevail, but even if DHS is ultimately permitted to implement the rule, no employer may be fined retroactively for continuing to employ workers with no match Social Security numbers during the period in which the preliminary injunction was in effect. Furthermore, if a company is firing workers based on a No-Match situation, its action may be illegal.
The Social Security Administration may continue sending letters to workers’ homes, and sending notes to companies regarding individual employees’ numbers. However, companies will not be directed to check anyone’s immigration status, or be required to straighten out an employee’s a “No Match” situation. SSA may also not include the DHS letter specified in the now enjoined rule. SSA has indicated that it will not be sending out the more than 100,000 letters to employers that it has been sending out in prior years until the litigation is resolved.
An employer may, of course, be liable for fines if he or she otherwise has knowledge that a worker is unauthorized to work. Within at least the past year, DHS has at times “wired” undocumented workers with their consent who have told employers that they are here illegally. This can result in civil and criminal liability of an employer. In general, we advise employers not to discuss an employee’s immigration status with him or her. In fact, after the time of hire, an employer is generally not legally permitted to scrutinize an employee’s immigration status. Rather, at the time of hire the employer is required to make sure that the potential employee has certain specified documents, for example, an unrestricted Social Security Card and current Driver’s License, that indicate the employee’s eligibility to work legally in the U.S.
In conclusion, the major point of this letter is that while the preliminary injunction is in effect, and, afterwards if the DHS rule is held by the federal judge to be unlawful, an employer has no need to protect herself by firing a worker merely because he or she has a “No-Match” Social Security number. You may wish to consult with your counsel, or obtain counsel from an experienced immigration attorney who is familiar with these issues, including the withdrawn rule and the preliminary injunction. We also invite you to periodically check our website at www.ilrc.org for updated information. We also suggest that you check the website of the National Immigration Law Center (NILC) – www.nilc.org .
Sincerely,
Mark Silverman, attorney at law
Immigrant Legal Resource Center (ILRC)