Illegal immigrants and “no-match” letters

The Department of Homeland Security’s (DHS) Immigration and Customs Enforcement has issued final regulations describing an employer’s obligations upon receiving a "no-match letter" from DHS or the Social Security Administration (SSA). Such letters are issued when the combination of the employee name and the social security number on an employee’s W-2 form does not match SSA records. The cause of such a letter may be that the employee is in alien unauthorized to work in the U.S. It is a violation of the Immigration and Nationality Act to "knowingly" employ an unauthorized alien. "Knowing" includes both actual and constructive knowledge. The final regulations make clear that receiving a "no-match letter" from SSA or DHS can be "constructive knowledge" of employing an unauthorized alien, depending on the "totality of the relevant circumstances." The final regulations also describe "safe-harbor" procedures an employer can follow in response to a "no-match letter" to eliminate the possibility that the letter amounts to constructive knowledge. The "safe-harbor" procedures involve attempting to resolve the no-match letter. If the discrepancy cannot be resolved within a certain period of time, the employer must again verify the employee's identity and employment authorization through a specified process. The final rules are effective September 14, 2007.

72 Fed. Reg. 45,611 (Aug. 15, 2007)
DHS final regulation