Guidelines for Responding to ‘No-Match' Letters From SSA

By Sarah L. Wixson | Related Practices: Agriculture and Employment

The Social Security Administration (SSA) has resumed issuing what is officially called an “Employer Correction Request Notice,” but are commonly referred to as “no-match letters.” The letter states:

You reported X employee names and Social Security numbers (SSN) on the Wage and Tax Statements (Forms W-2) for tax year 2018 that do not match our records.

Receiving a no-match letter does not mean that the employee or the employer did anything wrong or that the employee is not authorized to work in the United States. There are many causes for SSA mismatches including typographical errors, failure to inform the SSA of an employee name change, dual surnames that are placed in the wrong order (Sarah Wixson Clarke instead of Sarah Clarke Wixson) as well as employees who present false social security numbers.

A no-match letter is not a basis to take any adverse action against the employee, such as firing or discriminating against the employee. Taking adverse action against the employee could subject the employer to liability under the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.

Employers who knowingly employ unauthorized employees are in violation of federal immigration laws and maybe subject to fines and criminal prosecution. There is concern that the receipt of a no match letter could be used as evidence during an Immigration and Customs Enforcement (ICE) audit. ICE will ask for no match letters when conducting records audits or other enforcement actions. In addition, SSA shares information with ICE. Therefore, simply ignoring a no-match letter is not a good option. You will want to show that you acted and acted reasonably.

We suggest the following:

1. Log onto SSA’s on-line portal, Business Services Online.


2. Obtain the list of mismatched employees. To minimize claims of discrimination, limit the number of people who have access to the list, and keep it in a central, secure location.
   
   After logging on to the portal and accessing the “Error Details” tab, some employers are not receiving a list of the affected employees and instead receive a message that states, “The error for which you have requested details is INFORMATIONAL and requires no further action.” If you receive this message, please print the page (there is a “print page” tab on the bottom of the screen) or screen shot it and save it for your records.


3. If instead of the “INFORMATIONAL” message, you receive the names of employees, compare the information on the portal to your records.


4. If there is an error, make corrections by filing a form W2-C within 60 days.


5. If there is no discrepancy between the information you have and the information the SSA has, you should reach out to the employee. The SSA has provided a sample letter. The letter should advise the employee that they should contact the SSA to correct and/or update their SSA records and that it will not adversely affect their employment.


6. There are no federal statutes or regulations that define a “reasonable period of time” in connection with a no-match letter. When an employee comes up as a no-match in the e-verify system, SSA has recognized it could take as long as 120 days to resolve the discrepancy. What happens at the end of the 120 days when the employee has been unable to resolve the discrepancy is a bit of a grey area. However the no match letter specifically states that the letter should not be used to take any adverse action against the employee. We have approximately 180 days (60 days to complete the corrections and 120 days for the employee to cure the problem) to either receive guidance or determine what the next step, if any, might be.


7. Keep a separate SSA file that documents what actions you have taken to address the SSA’s “Employer Correction Request Notice,” including any correction made, letters sent out, letters returned as undeliverable, etc. To avoid possible discrimination on the basis of the no-match letter, do not place the no-match letters in an employee’s personnel file.

DO NOT:

• Assume that the no-match letter conveys information regarding the employee’s work authorization or immigration status.


• Attempt to immediately reverify the employee’s work eligibility by requesting completion of a new Form I-9.


• Require the employee to produce specific documents to address the no-match including a written report of any correspondence with SSA

If you have questions regarding the no-match letters or need more information on Form I-9 compliance, please contact Brendan Monahan (brendan.monahan@stokeslaw.com), Sarah Wixson (sarah.wixson@stokeslaw.com). We will continue to keep you updated as additional rules, regulations, or guidance becomes available.