Effective April 6, the Social Security Administration (SSA) resumed sending no-match letters to employers whose workers are using a Social Security number that does not match the SSA’s 2010 tax records. The practice had been discontinued in 2007 after debate about what the immigration compliance consequences might be for workers who presented social security numbers that had dubious validity.
The 2007 no-match letter included information from the Homeland Security Department's Immigration and Customs Enforcement (ICE) which alerted employers that failure to act upon receipt of a SSA letter could be construed as knowingly employing illegal aliens. That version was scheduled to go into effect Sept. 14, 2007 but as a result of a lawsuit filed by the AFL-CIO, the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC) and others the U.S. District Court for the Northern California enjoined it.
Consequently, the SSA did not send no-match letters for the tax year 2007 or thereafter for 2008 and 2009. In 2009, the DHS withdrew the safe harbor rule which outlined circumstances in which an employer could be found to have knowledge that an employee is not legally authorized to work.
The new version of the SSA no-match letter lists only one employee per letter as opposed to multiple employee Social Security numbers.
According to the SSA, any letter that it might be sent:
"… does not imply that you or your employee intentionally provided incorrect information about the employee's name or SSN. It is not a basis, in and of itself, for you to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual. Any employer that uses the information in this letter to justify taking adverse action against an employee may violate state or Federal law and be subject to legal consequences. Moreover, this letter makes no statement about your employee's immigration status."
The 2011 no-match letter does not include ICE’s language cautioning employers that failure to act upon receipt of the SSA no-match letter could be interpreted as "constructive knowledge" of continuing to employ workers who are not legally authorized. SSA has decided it will not retroactively send letters for the tax years 2007 through 2009.
The no match letters, although they don’t include specific immigration language, nevertheless reinforces the strong Congressional message that illegal alien workers will not be tolerated. The safest thing employers can do is hire legal workers and make sure that their process for verifying employees is bullet proof.
By definition, that means using E-Verify.