By Robert P. Mader
Of CONTRACTOR’s staff
WASHINGTON – The Department of Homeland Security’s Immigration & Customs Enforcement division has issued new rules for contractors to follow when the Social Security Administration sends letters stating that an employee’s name and Social Security number do not match SSA records. The rules also contain new penalties for “constructive violation” of immigration laws and provides a “safe harbor” procedure for contractors to use when they receive an Employer Correction Request, usually referred to as a no match letter.
The regulation goes into effect on Sept. 15, 2007.
At press time, the AFL-CIO had won a Federal court ruling delaying the Social Security Administration’s mailing of the no-match letters. The program, however, remains in effect pending review by the courts.
The SSA does not share information with Immigration & Customs Enforcement, so ICE cannot proceed just on the basis of no-match letters; it has to develop its own leads to enforce immigration laws. If, however, ICE discovers during an enforcement effort that an employer received a no-match letter and ignored it, then the employer can be liable for criminal and civil penalties.
The regulations spell out what constitutes an employer’s constructive knowledge that an employee wasn’t legal.
One is written notice to an employer from SSA that the combination of name and Social Security Number submitted for an employee does not match SSA records. The second is written notice from the Department of Homeland Security that the immigration status document or employment authorization document presented or referenced by the employee in completing Form 1-9 was assigned to another person or that there is no agency record that the document was assigned to anyone.
The government would also consider it to be a constructive violation if the I- 9 form was not properly completed, or if the contractor learned from another source that an employee was not eligible to work legally.
The rules state how a reasonable employer is expected to respond and how long he has to do it in order to shield himself from liability.
After employers submit their annual W-2 forms, Social Security processes them. If SSA can’t match the numbers to the worker’s Social Security account, it sends out an Employer Correction Request letter. Employers get this nomatch letter if they report more than 10 non-matching Social Security numbers or if they represent more than 0.5% of the employer’s W-2 forms.
If an employer ignores the no-match letter, SSA can refer the matter to the Internal Revenue Service.
Starting for tax year 2006, however, the no-match letters will be accompanied by a letter from ICE, telling employers how to respond so they don’t run afoul of immigration law.
Contractors can’t take action against an employee just because of a nomatch letter. SSA notes that some of them are the result of typographical errors or name changes from marriage. The employees are still protected by Equal Employment Opportunity law.
A contractor has 30 days to check his records to make sure the no-match wasn’t the result of an error made by the contractor. If there’s still a discrepancy, the contractor must ask the employee to confirm the accuracy of the employer’s records. If necessary, the employee has 90 days from the date the contractor received the no-match letter to resolve the problem directly with Social Security.Employers can now verify Social Security information online at www.ssa.gov/bso/bsowelcome.htm or at 800/772-6279.
If the contractor or the worker resolve the issue with Social Security, they still have to make sure everything was done right. The contractor has to make sure that all of the instructions in the SSA letter have been followed. The contractor also must verify the correction through the Social Security Number Verification Service (SSNVS), and retain a record of the date and time of verification. SSNVS can be reached at www.socialsecurity.gov/employer/ssnv.htm or at 800/772-6270.
If all that fails, the contractor must have the worker fill out a new I-9 form, as if the worker were a new hire. The difference is that the worker can’t use any document that references the disputed Social Security Number. The worker must present photo identification that proves both his identity and his authorization to work legally.
Contractors who fail to comply (and get caught) are subject to a minimum civil penalty of $275 for a first offense, up to a maximum of $2,200 per illegal alien. Repeat offenders can be fined as much as $11,000 per illegal worker.
The criminal penalties call for fines up to $3,000 for each unauthorized worker and up to six months in jail