Part of the challenge of the I-9 process is balancing conflicting government mandates. On one hand, there is the obligation to make sure that prospective employees present facially valid employment authorization documents before putting them on the payroll. On the other hand, one must be careful not to ask employees for any specific kind of documentation, or too much of it, in order to avoid a charge by the U.S. government that non-U.S. citizens have been discriminated against in the hiring process. The return of “no-match letters” issued by the Social Security Administration, after a years-long hiatus, throws a monkey wrench in this perpetual battle between the risk of over-documentation and the risk of hiring an undocumented employee.

“No-match letters” are issued by the Social Security Administration when Social Security numbers provided on W-2 documentation by employers do not match up with records in Administration systems. Unfortunately, I-9 guidance on what employers should do when they receive “no-match letters” is anything but clear. In 2007, regulations were proposed that would have advised employers on how to deal with these letters for I-9 purposes, but the regulations were withdrawn two years later. The problem, therefore, is that auditors at Immigration and Customs Enforcement (ICE) have very much a free hand in interpreting what employers do with “no-match letters” as evidence of compliance with or violation of the I-9 guidance, and that attorneys at the Department of Justice’s Office of Special Counsel (OSC) have wide discretion in determining what documentation practices are worth bringing suit against on discriminatory grounds.

However, one thing that is clear is that “no-match” letters cannot be ignored. ICE has been fairly consistent over the years in stating that they view “no-match letters” as a potential form of evidence of an undocumented employee. Therefore, employers have obligations to re-verify and/or terminate employees if necessary after a “no-match letter” is received. They may also have responsibilities to retain all applicable documentation generated in this process. By the same token, OSC has advised repeatedly that terminating an employee, or even requiring a new I-9 too early, may constitute evidence of discrimination if no effort has been made to resolve the discrepancy. Thus, employers must work with I-9 experts to develop defined procedures which meet the latest guidance from all agencies on what constitutes a reasonable response to a “no-match letter.” Firing an employee and hoping the problem will go away, or simply doing nothing, will not suffice in an age of increased I-9 enforcement.
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