Department of Homeland Security rescinds No-Match rules effective November 6, 2009

For years, the Social Security Administration had been sending employers No-Match letters when an employee’s social security number is found to not match their personal information. However, the Social Security Administration never provided clear guidelines on how to respond to the No-Match letters. This confounded many, and as a result, the Department of Homeland Security DHS) promulgated a new rule on how to deal with these letters. However, this new rule did little to clear up the confusion, and in October of 2007, the AFL-CIO labor union obtained an injunction to stop DHS from enforcing the new rule. DHS subsequently amended its regulations to address the AFL-CIO’s concerns. However, this still proved insufficient.

Now, two years after the AFL-CIO filed for a court injunction, DHS has given up on its new rule. DHS wrote in its rescission notice that it will focus its enforcement efforts regarding employment of illegal aliens on other programs such as the new E-Verify and ICE Mutual Agreement between Government and Employers. The rescission took effect as of November 6, 2009.

This is not to say that the proliferation of No-Match letters will cease entirely. To the contrary, employers are likely to continue receiving them. Although unenforceable, these letters constitute constructive notice to employers that the employee is likely an illegal alien. As a result, employers are once again in the dark as to how to respond to such letters. To alleviate the uncertainty, many people have weighed in on this subject, and the following constitute suggestions for employers in responding to No-Match letters:

Vigorously check employee records for errors
Inform the employee in writing of the receipt of the letter and ask them to inquire with the Social Security Administration within a reasonable time frame (typically sixty (60) to ninety (90) days is sufficient)

If after that time frame the employee has not resolved the issue, it is best to terminate their employment. However, be careful not to violate any employment discrimination laws in the process, as anything that constitutes a wrongful termination can be used against you in an employment discrimination suit.