How to Proceed if You Receive a “No-Match” Letter Relating to an Employee

As an employer, it’s your responsibility to verify – to the best of your ability – that your employees are legally permitted to work in the United States, regardless of their country of origin. But, sometimes, certain situations arise that are unforeseen.

Do you know what to do if you learn that one of your employees may not be eligible to work in the United States or if you receive a No-Match letter?

Verifying Employment Eligibility

If you hire employees, you are responsible for verifying both their identities and their eligibility to work in the U.S. Under the Immigration and Nationality Act (INA) of 1952, this is performed by completing an Employment Eligibility Verification form (I-9) for all employees – both those from the United States and those from other countries. This form is to be retained for 3 years after the hire takes place, or for the length of the employment plus 1 year – whichever is longer.

While the forms are not routinely collected by or filed with a Government agency, it is your responsibility to keep them on hand should the need for a review from the U.S. Immigration and Customs Enforcement (ICE) arise.

In addition to the I-9, it is your responsibility to send the Social Security Administration (SSA), the earnings reports (W-2’s) for each employee. These forms contain both the employee name and social security number. This adds another level of accountability and security that ensures that employees are who they say they are, and that they’re eligible to work in the country.

Sometimes, the Data Doesn’t Add Up

In certain cases, if a discrepancy arises on the W-2 between an employee’s name and his or her social security number, the SSA will send a letter, commonly referred to as a No-Match letter or Employer Correction Request.

In some situations, this could mean that an employee is not who he or she claims to be, or that he or she does not have eligibility to work in the United States. However, in other situations, these letters may be sent following clerical errors or simple name changes.

What to Do Next

It’s important to note that while there may be a serious issue at play, because it’s possible that there is not, taking swift action before a thorough investigation is not the proper reaction. This could open you, as an employer, up to discrimination lawsuits and other legal trouble. Remember, the letter itself is not an absolute statement on immigration status or eligibility to work in the U.S.

For situations like this, Safe Harbor procedures have been developed. If you receive a No-Match letter, the following actions are outlined under these procedures:

  • Note the date that the No-Match Letter was received.
  • Check your records to look for any simple explanation for the discrepancy. If a simple explanation is found, you should inform the SSA while submitting the correct information, along with any other instructions included with the No-Match letter. In addition, update the I-9 form, or complete a new one, but save the original. These steps should be completed within 30 days of the letter’s receipt.
  • If no explanation is found while verifying the documents, you are responsible for requesting your employee to confirm the name and social security number on file.
    • If the employee claims the information is incorrect, it should be corrected and reported.
    • If the employee claims the information is correct, you should request that the employee resolve the discrepancy with the SSA, in accordance with the information included in the No-Match letter.
      • In this situation, you should note the date the employee was advised to resolve the discrepancy and the employee should be given time to resolve the issue. Once the issue is resolved, you are responsible for following up and verifying its resolution with the SSA. Record and file this information.
  • If, within 90 days of the receipt of the letter, you are unable to verify the employee’s identity, and no action has been taken on the employee’s part, it is your responsibility to follow up with the SSA for next steps.

Generally, the SSA, along with the ICE will perform an audit to inspect the aforementioned I-9 documents at the conclusion of this process. At this point, if there is still a concern, a

“Notice of Suspect Documents” will be sent from the ICE to you, the employer, and action will be taken at a higher level.

Have You Received a No-Match Letter?

Have you received a No-Match letter? Are you concerned about your current procedures for verifying your employees’ eligibility to work in the United States? Working with an experienced business and employment attorney, like Michael Hynum of Hynum Law in Harrisburg, Pennsylvania, may be in your best interest.

To set up a consultation, contact us today. We look forward to working with you.