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DHS Releases Final No Match Letter Rules

    Client Alerts
  • October 31, 2008

Last week, the Department of Homeland Security issued final regulations for employers that receive “No-Match” letters from the Social Security Administration (“SSA”).  No-Match letters are issued when the Social Security number accompanying withheld payroll tax amounts does not match the name of the employee.  In many cases, this indicates use of a false number by an employee not qualified to legally work in the U.S.

In September, 2007, DHS issued initial rules for reconciling employees’ immigration status with the letters.  A federal court in California prevented implementation of the rules based on concerns over mistakes in the federal databases, and the burdens placed on employers.  The supplemental rules contain additional economic justification for the requirements, as well as more detailed instructions for employers required to verify the employees’ work status.

These steps include first making sure that the discrepancy did not result from a typographical error or other circumstance such as a name change due to marriage.  If this does not clear up the matter, the employer is required to contact SSA within 30 days after receipt of the letter to verify the employee’s Social Security number.  If there continues to be a discrepancy, the employee has up to 90 days from the date of the No-Match letter to provide the employer with proof that the issue has been resolved, and to provide a verified number.

If the problem is resolved, a new I-9 form must be completed.  If not, the employer must terminate the employee’s employment, and notify DHS of its action.  The final rule will not become effective until reviewed and approved by the federal court.  Additional legal challenge to the No-Match rules is a virtual certainty.