We received a Social Security “No-Match” letter: Now what?

After a brief hiatus, the Social Security Administration (SSA) is again sending “No-Match” Letters to employers around the country. These letters advise employers that certain Social Security Numbers (SSN) provided by employees do not match the names of the individuals that SSA has on file for such numbers.

Why would an employer receive a Social Security “No-Match” Letter?

Employers should not immediately assume that receipt of a “No-Match” letter confirms that the employee, or employees, listed are not authorized to work. It is more likely that a data-entry error is to blame. Data entry errors are also a common reason that employers who participate in E-Verify receive Non-Confirmation notices when the E-Verify program is not able to match the information entered into its database with that of the Social Security Administration.

Although not always the case, receipt of a “No-Match” letter can also be caused by employees who are not authorized to work in the United States (and are using either a false SSN or an SSN assigned to someone else). This issue is of considerable concern to employers because of increased immigration enforcement against companies who employ unauthorized foreign workers.

How does an employer respond to a Social Security “No-Match” Letter?

The letter will contain specific instructions and direct the employer to online resources they can use to resolve the “No-Match”.

Can I request a copy of an employee’s Social Security Card to determine if the “No-Match” letter was caused by a data entry error?

Yes. Form I-9 savvy employers are understandably concerned about requesting specific documentation to prove identity and work authorization. This practice is specifically prohibited as discriminatory under Form I-9 rules. However, resolution of a Social Security “No-Match” is primarily a payroll issue which is unrelated to the Form I-9. Many employers already request copies of Social Security Cards from all of their employees just to double-check the information provided for payroll purposes. Employers are cautioned, however, to be consistent in the implementation of any such practices and not simply target their foreign national population.

If I receive a Social Security “No-Match” Letter for an employee, does it mean they are not authorized to work in the U.S. (an “illegal immigrant”)?

No. Receipt of a Social Security No-Match Letter does not expressly indicate that the employee is not work authorized (often inaccurately referred to as an “illegal immigrant”) or has stolen someone’s identity. As explained above, it is more likely that a number or name was entered in error. For example, a common reason for a No-Match letter is a change in marital status. When a spouse doesn’t change their name with the Social Security Administration but provides their employer with a different last name due to marriage or divorce, a No-Match is likely to result.

Will employers who receive Social Security “No-Match” letters be investigated by ICE?

Is it likely that receipt of one or two Social Security “No-Match” Letters will result in an ICE investigation? Probably not.

What we do know, however, is that government agencies share information. As a result, there is a risk that an employer who receives a high volume of “No-Match” letters would be referred to ICE by the Social Security Administration. It is advisable for such an employer to review their Form I-9 and payroll practices.

What should employers do to prepare for a Social Security “No-Match” letter?

1. Communicate across departments. The Social Security “No-Match” letter will be directed to the department or person who processes the employer’s payroll. If another department or person is responsible for resolving human resources issues, it is extremely important that both resources define how they will communicate and define roles with regard to steps to be taken to resolve.
2.  Review current onboarding and payroll practices. Implement steps to both:
   1. Timely and correctly complete the Form I-9 to confirm the identity and work authorization of their employees; and
   2. Confirm the accuracy of the information provided and maintained for payroll and tax reporting.

Should employers require that all of its employees provide copies of their Social Security Cards to avoid a “No-Match” Letter?

They could. It is advisable that employers do so consistently and do not just target employees of a specific race or ethnicity, or, for example, only their employees who do not have an American accent. You should also make it clear that providing a copy of the social security card is NOT a requirement for the Form I-9. Employers may wish to explain this payroll policy in writing to your employees, so it is clear that it is a consistent practice that is unrelated to the Form I-9, just to avoid any misunderstandings.

Should employers use the Social Security Number Verification Service (SSNVS) to confirm that their records match those of the Social Security Administration?

This isn’t necessary for employers who participate in E-Verify as this is already a part of that verification process.
For employers who do not participate in E-Verify, it is possible to use SSNVS to confirm that wage reporting information is accurate. It is important to note that SSNVS is only for use to confirm wage reporting (Form W-2) information and is not authorized for use to confirm work authorization provided on the Form I-9.

Should employers compare the name and social security number an employee provided on their Form I-9 to the information provided for payroll purposes?

This is not the best way to confirm the accuracy of data provided for payroll purposes. The social security number is not a mandatory field on the Form I-9 for employers who do not participate in E-Verify. Requiring more documentation and/or information than is necessary to complete the Form I-9 is prohibited.

Our firm has counseled employers on employer sanction issues and has represented employers in such enforcement proceedings since these laws were enacted more than 30 years ago. Maggio Kattar helps employers identify compliance deficiencies and develop customized processes and policies to best support both compliance, and the unique goals of their organization.