Employer SSN No-Match Letters Are Back!

Published 6.20.2019

In March 2019, the Social Security Administration (SSA) resumed its prior practice of issuing Social Security No-Match letters. Officially, the No-Match letters are known as Educational Correspondence (EDCOR)/Employer Correction Requests. The No-Match letters notify employers when the social security number (SSN) information reported in wage and tax statements does not match information in the SSA records. By the end of April 2019, SSA already issued more than 577,000 such notices to U.S. employers.

Who gets the SSN No-Match letters?
The current policy implemented as of March 2019 requires SSA to issue SSN No-Match letters to all employers who submit at least one name and SSN on a Form W-2 for an employee that does not match SSA records. The employer does not have to have a large number of no-match incidents to trigger the notice, only one mismatch will suffice.

What does the No-Match letter say?
The SSN No-Match letter generally states the employer reported to SSA “X” number of employee names and SSN information on W-2s that do not match the SSA records. The SSA letter does not identify the names or SSNs of the employees. Instead, the letter directs the employer to register and access a specific SSA database to obtain that information. The letter further requests that the employer provide corrected SSN information within 60 days. A sample of the SSN No-Match letter can be found here.

Does a SSN No-Match letter mean the employee is undocumented?
No. Receiving a SSN No-Match letter does not necessarily mean the employee is in the U.S. illegally or working without authorization. The letter itself states that it does not address the employee’s immigration status or work authorization, and it cautions employers against using the letter as grounds to take any adverse action against the employee.

If the employee is here legally and works legally, then why does SSA have the wrong information?
A SSN mismatch can be caused by several reasons. It can be as simple as having a typo in what was reported to the SSA. Many employees have compound or hyphenated legal names, but when filling out day-to-day paperwork they may only put down a short version of their name instead of the full legal name. Other employees may have changed their name due to marriage, divorce or other life events and simply did not get around to updating their SSA records. Others may have a SSN mismatch because they were involved in identity theft situations, which are not always related to immigration.

What should employers do when receiving a SSN No-Match letter?
If you are an employer that received a SSN No-Match letter, you should read the letter carefully and follow the instructions contained therein, then access the Business Service Online (BSO) tool within the SSA’s website to find out the names of the individual employees whose reported SSN did not match. Once you know their identity, notify the employee(s) about the SSN mismatch. The SSA provides a sample notice employers can use to notify the employees in these cases. Ask the employee to provide corrected information and submit it to the SSA as instructed in the letter or, if the employees believe the information is already correct, direct them to contact the SSA in order to update and correct their records directly with the agency.

What should employers NOT do when receiving a SSN No-Match letter?
Employers should not assume the employee lacks work authorization. As mentioned above, there are several legitimate reasons why a mismatch can occur. Therefore, employers should not take any adverse action such as termination, suspension, or other similar actions against the employee, because doing so based on the SSN No-Match letter alone may be construed as discrimination on account of national origin or citizenship status, both of which are prohibited by law.

The U.S. Department of Justice issued a helpful Do’s and Don’ts for employers when dealing with No-Match letters. According to the Department of Justice, employers should NOT automatically request that the employee fill out a new I-9 Employment Eligibility Verification form, demand to see any particular I-9 documents or any specific types of IDs, or single out employees for more scrutiny based on their national origin (actual or perceived).

However, that is not to say that looking into an employee’s I-9 after receiving a SSN No-Match letter is never allowed. While SSN No-Match letters could not justify an I-9 re-verification by themselves, they could justify it in combination with other documents, information, or reliable tips the employer may have acquired in the regular course of business that would lead a reasonable person to conclude that the employee’s identity or work authorization is in question.

What if the employee really is undocumented? Can ICE use the SSN No-Match letters as evidence the employer knew about the employee’s immigration status?
It depends. If Immigration and Customs Enforcement (ICE) initiates an audit or investigation into the employer’s I-9 records, usually the initial request asks for copies of any Social Security No-Match letters that the employer received in the past. However, whether the employer received SSN No-Match letters or not is only one of the factors ICE considers in determining employer liability for employing undocumented workers.

The I-9 statute provides an affirmative defense for employers who are found to have undocumented workers if the employer complied in good faith with the I-9 Employment Eligibility Verification process. Therefore, if employers comply with the I-9 process properly and consistently, the fact that they received a SSN No-Match letter may not, in and of itself, trigger liability if one or more employees turn out to lack work authorization.

As always, walking the fine line between immigration compliance and avoiding national origin or citizenship status discrimination is a careful balancing act. If you received a No-Match letter and have any questions about how to deal with it, or if you have any questions about I-9 compliance or other immigration-related matters, contact Attorney Raluca (Luca) Vais-Ottosen at (608) 252-9291 or at rvo@dewittllp.com.