A letter was shared today in the Immigration Daily newsletter, www.ilw.com pertaining to how long an employer should wait if an employee cannot resolve   an SSA No-Match issue.

This is a question commonly asked and, although the letter provides guidance relative to the 120 days provided by E-Verify to resolve tentative non-confirmations as representing a reasonable period of time, the last paragraph of the letter states:

“As stated above, OSC cannot comment on whether an employer should terminate an employee who is unable to resolve the no-match within the specified time period. To the extent however, that an employer has such a policy, OSC would advise the employer to treat all employees consistently, regardless of citizenship status or national origin.”

To view the letter.

We are dedicated to assisting our clients develop compliant workforces.  Contact Immigration Solutions us to discuss your compliance needs.  View our services and solutions here.

The Meg Whitman scenario playing out in the news the last few days, is a good opportunity to address this issue and just how exactly the SSA No-Match Letter process works.

If the combination of name and SSN on a Form W-2 can not be matched to an SSA record, SSA is unable to attribute the earnings to a worker’s record. There are a number of reasons why reported information may not agree with our records, such as typographical errors, unreported name changes, inaccurate or incomplete employer records or misuse of an SSN.

What is a No-Match Letter?

After SSA processes the wage reports submitted by the employers, they attempt to resolve items that cannot be matched by sending letters to employees, employers and self-employed individuals to inform them when a reported name or SSN does not match SSA’s records. These letters are referred to as “no-match” letters and their purpose is to obtain corrected information to help SSA identify the individual to whom the earnings belong so that the earnings can be posted to the individual’s earnings record.

No-match letters fall under two categories:

• Employer No Match Letters — These letters may also be referred to as Employer Correction Request or Educational Correspondence (EDCOR) letters; and

• No Match Letters sent to workers whose earnings could not be credited to SSA’s records are referred to as Decentralized Correspondence or DECOR letters.

SSA began sending no-match letters to workers in 1979 and to employers in 1994.

Who gets a No-Match Letter?

When SSA processes wage reports, it notifies every worker whose name and SSN could not be matched to SSA’s records. This letter is sent to the address on the worker’s Form W-2. If there is no address or an address is not found in the Postal Service database of valid addresses, this letter is sent to the employer. The new DHS regulation does not address these letters.

Employer Notices (EDCOR)

Approximately two weeks after the release of the worker letters, SSA sends employer no-match letters. Currently, these are sent to any employer who reported more than 10 no-matches that represented more than 0.5% of the W-2s submitted by that employer.

The Employer notice advises of the no-matches and asks for corrected information.

Employer notices can list up to 500 SSNs (no names) that could not be matched (the employer can contact SSA for a full list if there are more than 500 errors). The employer is asked to prepare Forms W-2c (Corrected Wage and Tax Statement) for each of the SSNs listed in the Employer notice that the employer is able to correct.

If you are enrolled in E-Verify and receive a TNC

When a Tentative Non-Confirmation (TNC) is issued, the employer must notify the employee of the TNC and give the employee the opportunity to contest that finding.  If the employee chooses to contest the SSA TNC, he or she has eight business days to visit an SSA office with the required documents to initiate the process to prove identity and support the correction of the SSA record. Until the TNC is resolved, even if it takes longer than eight days, the employee must be allowed to keep working and cannot be fired or have any other employment-related action taken against him or her because of the TNC.  If the employee fails to contact SSA within the eight day contest period, the employee is considered a no show and a final non-confirmation is issued by E-Verify.  At this point, the employer should discuss this situation with their immigration attorney and seriously consider terminating employment.  A recent electronic business process enhancement, EV-STAR, allows SSA to use the E-Verify system to inform the employer of the case resolution once the employee visits SSA and resolves the issue.

For employees who successfully resolve a TNC, correcting SSA records is a useful result of the E-Verify process, helping individuals identify and resolve problems with their Social Security records. The work done to update records to resolve an E-Verify mismatch would need to be done at the time the individual applies for Social Security benefits.

Here is a sample of the E-Verify Referral Notice to the Employer when there is an SSS No-Match.  For more information on this topic, we link to our website where we have our employer compliance resource center and list of services and solutions for employers.

ICE has filed a 60-day notice for a new information collection application with the OMB (Office of Management and Budget) for their IMAGE Program (ICE Mutual Agreement between Government and Employers) that is the education component of the Office of Investigations (OI) Worksite Enforcement program.  The Notice is available here.  Comments will be accepted for 60 days until August 10, 2010, and should be sent to the person named in the Notice.

In an article published on ILW.com on the subject, the author states:

In July of 2006, ICE announced two measures billed as “voluntary partnerships with the government.” The first is a list of what the agency considers to be “Best Hiring Practices.” The second is a voluntary program entitled the “ICE Mutual Agreement between Government and Employers,” also referred to as IMAGE , which it has been working on since at least July of 2005. The government is actively promoting these programs to employers.

What are considered Best Hiring practices?

As part of the ICE Mutual Agreement between Government and Employers, the (IMAGE) program, DHS recommends the following “best hiring practices” as follows:

• Use E-Verify to verify the employment eligibility of all new hires.
• Use the Social Security Number Verification Service (SSNVS) and make a good-faith effort to correct and verify the names and Social Security numbers of the current workforce.
• Establish a written hiring and employment eligibility verification policy (I-9 policy)
• Establish an internal compliance and training program related to the hiring and employment verification process, including completion of the I-9 form, how to detect the fraudulent use of documents in the verification process, and how to use E-Verify and SSNVS.  Require the I-9 and E-Verify process to be conducted only by an individual who has received appropriate training, and include a secondary review as part of each employee’s verification “to minimize the potential for a single individual to subvert the process.”
• Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 process.
• Establish a procedure to report to ICE credible information of suspected criminal misconduct in the employment eligibility verification process.
• Establish a program to assess subcontractors’ compliance with employment eligibility verification requirements. Encourage contractors to incorporate IMAGE Best Practices and when practicable incorporate the verification requirements in subcontractor agreements.
• Establish a protocol for responding to letters received from federal and state government agencies indicating that there is a discrepancy between the agency’s information and the information provided by the employer or employee (for example, “no-match” letters received from the Social Security Administration).
• Establish a tip line mechanism (e.g., inbox, e-mail) for employees to report activity relating to the employment of unauthorized workers, and a protocol for responding to employee tips.
• Establish and maintain appropriate policies, practices, and safeguards against use of the verification process for unlawful discrimination, and to ensure that U.S. citizens and authorized workers do not face discrimination with respect to hiring, firing, or recruitment or referral for a fee because of citizenship status or national origin.
• Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires.

Note:  It is important to notice that some of these points listed above have critical content.  We link to the ILW.com excellent analysis of Best Practices and the IMAGE program for employers to carefully consider prior to enrolling in these programs.

Should you require further assistance or consultation regarding these programs, please contact our office.