Final Rule Out on "No Match" Letters

August 17, 2007 ( - The federal government released final rules last week on employers' obligations and options for avoiding liability after receiving confirmation that an employee's immigration status or employment status does not match federal agency records.

The “no match” letters from the Department of Homeland Security (DHS) or the Social Security Administration (SSA) verify that the employee is an illegal alien not authorized to work in the U.S. The final rules identify “safe-harbor” procedures for an employer to avoid the finding it had constructive knowledge that a worker was an unauthorized alien.

The regulation goes into effect September 14, 2007, and provides that employers will be liable if they fail to take “reasonable steps” within 90 days of receiving the no-match letter, including:

  • A reasonable employer checks its records promptly after receiving a no-match letter to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in the employer’s records, or in its communication to the SSA or DHS.
  • If there is such an error, the employer corrects its records, informs the relevant agencies, verifies that the name and number, as corrected, match agency records.
  • If such actions do not resolve the discrepancy, a reasonable employer would promptly request that the employee confirm that the employer’s records are correct. If they are not correct, the employer would take the actions needed to correct them, inform the relevant agencies (in accordance with the letter’s instructions. if any), and verify the corrected records with the relevant agency.
  • If the records are correct according to the employee, the reasonable employer would ask the employee to pursue the matter personally with the relevant agency, such as by visiting a local SSA office, bringing original documents or certified copies required by SSA, which might include documents that prove age, identity, citizenship, or alien status, and other relevant documents, such as proof of a name change, or by mailing these documents or certified copies to the SSA office, if permitted by SSA.

If the discrepancy is unresolved within 90 days, the regulation identifies additional steps to attempt resolution. However, if no resolution can be made the employer must take steps to terminate the employee or face the finding that it had knowledge that it employed an unauthorized alien in violation of immigration laws.

The verification procedure involves the employer and employee completing a new Form 1-9 using the same procedures as if the employee was a new hire. The rule requires that both Section 1 (Employee Information and Verification) and Section 3 (Employer Review and Verification) be completed within 93 days of receipt of the no-match letter.

The regulation is here .