Employers must begin using revised I-9s: no match rule undergoes revision

Mushroom News, Jan, 2008 by Laura Phelps

The lawsuit was triggered by the Bush administration's Aug. 10 announcement that SSA would be altering how it sends out no-match letters. According to the new rule, SSA would include language in the letter explaining there was possible liability under immigration laws. In addition, SSA planned to include a general letter from DHS explaining the liability as well as describing a "safe harbor provision" meant to protect employers who attempted to comply with the letter.

Although DHS was not going to have access to the names of employers sent the no-match letters, the new rule would treat the receipt of the letter as evidence that the employer had "constructive knowledge" that an immigration violation was taking place.

The final rule was challenged in the U.S. District Court for the Northern District of California by a coalition of immigrant rights, organized labor, and civil liberties groups led by the AFL-CIO, the American Civil Liberties Union and the National Immigration Law Center. The U.S. Chamber of Commerce and other business groups later joined the litigation.

SSA had planned to send out no-match letters containing warnings from DI IS regarding immigration law liability beginning Sept. 4, even before the final rule was to be implemented. That plan was derailed, however, when Judge Maxine Chesney of the Northern District of California Aug. 31 issued a temporary restraining order preventing the letters from being sent.

After the delay prompted by Chesney's order and then Judge Charles Breyer's Oct. 10 grant of a preliminary injunction, Hinkle said that SSA believed it was running out of time to rewrite the notice and expect employers to correct wage data.

Nine Million Employees Checked Each Year

Each year, the SSA sends letters to some 138,000 employers pointing out discrepancies between data sent to SSA by employers and the information already available in the SSA database. The letters involve as many as 9 million employees each year who may have provided incorrect Social Security data. SSA has sent out the letters since 1994.

The letters are usually sent out in "batches" starting in March or April, Hinkle said, and employers are asked to correct data. Anticipating the final rule from DHS, last spring SSA did not send out employer letters based on the 2006 tax year but some workers did receive personal notices as part of SSA's efforts.

SSA uses the no-match letters as a way of informing employers that there is a problem with the W-2 information provided to SSA. Those problems can be due to the wrong name being put on the form, an error in reporting the Social Security number, or other errors that can occur on the employer's part.

Until this year, SSA has said that the no-match letters were designed to correct information and not meant to serve as a worksite immigration enforcement tool. SSA has opposed permitting DHS to have access to the names of employers who receive the letters because it says the letters are designed to correct data, not create liability.