DHS Rescinds Its Safe-Harbor Procedures for No-Match Letters

The Department of Homeland Security (DHS) has proposed amending its regulations by rescinding its safe-harbor procedures for employers who receive a no-match letter.

DHS recently announced that it has rescinded regulations which provided a safe harbor for employers who took specific steps in response to receiving a Social Security Administration (SSA) “employer correction request,” informally referred to as an employer “no-match” letter. The SSA issues a no-match letter when an employer’s W-2 information fails to match SSA records. Employers annually send the SSA millions of earnings reports (W-2 forms) in which the combination of an employee’s name and social security number (SSN) does not match SSA records.

As background, various persons sued DHS and the court hearing the suit granted an injunction against implementation of these provisions. The regulations provided an expanded definition of circumstances leading to “constructive knowledge” under which an employer could legally be charged with “knowing” that an employee was an “unauthorized alien.” An employer who would follow the “safe harbor” procedures set forth in the no-match regulations avoids only the risk of being found to have “constructive knowledge” that an employee is not authorized to work in the United States based on receipt of a no-match letter. This does not prevent DHS from finding that an employer had constructive knowledge in other ways, or that an employer had actual knowledge that an employee was an unauthorized alien. Note that there are many causes for a “no-match.” These may be clerical errors and name changes even for work authorized employees, apart from the submission of information for an alien who is not authorized to be employed in the United States. In the latter case, an employee may be using a false SSN or a SSN assigned to another person. The now rescinded rule provided that employers who took specified steps were sheltered from a charge of “constructive knowledge” of an employee’s non-work authorized status should that employee turn out to have been authorized to work, documents notwithstanding.

DHS has concluded that the electronic employment verification system (E-verify), in concert with other DHS programs, such as ICE’s IMAGE, will provide better tools for employers to reduce incidences of unauthorized employment and to more accurately detect and deter the use of fraudulent identity documents by employees.

Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com.