Social Security no-match letters resume

April 25, 2011

By DAN WHEAT

Capital Press

The federal government is issuing Social Security number no-match letters again, which means it is strengthening its position for I-9 audits, says a Seattle labor attorney.

"This is the most significant development since the government announced 1,000 new I-9 audits on Feb. 17," said Gregg Rodgers, an owner in Garvey Schubert Barer law firm in Seattle.

But while Rodgers and Dan Fazio, director of the Washington Farm Labor Association, agree employers should give workers time to resolve Social Security number discrepancies, they disagree on employers keeping the letters and a paper trail of actions.

After a four-year suspension, the Social Security Administration began issuing no-match letters on April 6. The letters notify employers of workers using Social Security numbers that don't match records. Discrepancies can be clerical errors or indications of illegal aliens.

Resumption of the letters along with an increase in audits of employment eligibility verification I-9 forms and an update of a government I-9 audit handbook "all leading me to conclude the government is getting fully prepared for stronger audits," Rodgers said.

The government is sending no-match letters so it can establish how employers have complied or not complied with the letters when it does the audits, he said.

Employers should keep the letters and document how they responded to each one, Rodgers said. It's best if employers can show they responded responsibly by notifying employees of the no-match and giving them reasonable time -- commonly thought to be 120 days -- to resolve discrepancies, he said.

But Fazio recommends getting rid of the letter and keeping no documentation unless the employer has a policy of ultimately firing employees who cannot produce adequate documents.

"Give a copy of the letter to the employee and explain their obligation to resolve it. You may in fact be following the law. No one really knows what a reasonable response is," Fazio said.

"But get rid of the letter because it can be evidence for ICE (U.S. Immigration and Customs Enforcement) to come back and charge that you had constructive knowledge the person was undocumented and that you didn't do enough," he said.

Fazio said he's had close to 20 emails from mostly tree fruit growers, including large companies, concerned about what to do with new no-match letters. He said one received 160 no-match letters over two days.

Fazio is holding webinars May 24 and 26 on no-match letters and how they impact employer I-9 policy.

ICE stepped up I-9 audits because they net lots of money and are done quietly, Rodgers told people at a Washington Farm Bureau labor conference in Ellensburg on Feb. 16.

Each little typo or mistake on an I-9 form can cost an employer up to $1,100 in federal fines and businesses have been fined as much as $400,000, he said.

Everyone hired after Nov. 6, 1986, has been required to fill out the form and provide proof of identity and eligibility to work in the United States. Employers have three days to examine the documents and complete the form.

Most of the audits announced Feb. 17 are of restaurants and target jobs of high turnover, low skill and language issues, Rodgers said. One of his clients is a restaurant going through post-audit phases of notices of technical or procedural failures and suspect documents.

Key agencies, including ICE and SSA, seem to agree that receipt of a no-match letter is not evidence of using fraudulent documents and that employers should give employees time to resolve discrepancies, the American Immigration Lawyers Association said.


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