All of you have probably received “no-match” letters from the Social Security Administration. Now, the Department of Homeland Security (DHS) has issued proposed regulations on how to respond properly. If you follow the regulations, you are entitled to a “safe harbor” protecting you from liability for a “knowing hire” violation of the Immigration and Naturalization Act.
The regulations are not yet final. We will let you know when they become final. For now, we recommend following the proposed regulations.
Within 14 days of receiving a no-match letter:
(i) check your records for clerical errors, immediately correct any error, inform the relevant agency of the error, and re-verify that the employee name and social security number match agency records; and
(ii) if the discrepancy remains unresolved, ask the employee to confirm the accuracy of your records, correct any inaccuracy, inform the relevant agency, and re-verify the corrected records. If the employee claims your records are correct, ask the employee to attempt correcting the problem directly. Then re-verify the employee name and social security number.
If a discrepancy is not resolved within 60 days, you should attempt re-verification by completing a new I-9 (treating the employee as a new hire), but without relying on any document containing the social security or alien number subject to a prior no-match letter, and relying only on documents with a photo to establish identity or both identity and employment authorization.
If each of these steps fails to achieve proper verification, the regulations require you to choose between terminating the employee, or facing the risk that DHS finds you have committed a “knowing hire” violation.