The "Mismatch Letter" Is in the Mail: The Social Security Administration Ramps Up Its Warnings to Employers (Part II)
Immigration Implications of SSN Mismatches
When complying with SSA's recommendations on clarifying discrepancies between reported employee name and SSN data, employers must take care to avoid violating employer sanctions provisions related to employment eligibility verification obligations and prohibitions against discriminatory employment practices. SSA's Code V letters instruct employers to take the following action to correct discrepancies in W-2 data:
When employers follow SSA's advice for resolving discrepancies in W-2 data, immigration issues frequently arise because of employers' obligations under the Immigration Reform and Control Act of 1986 ("IRCA")12 to ensure that they employ only authorized workers in the United States while at the same time avoiding discriminatory employment practices.
Fortunately, INS has provided guidance on employers' obligations with respect to information they receive from the SSA in mismatch letters. INS has issued two letters that discuss whether SSA's notice of this discrepancy to an employer -- by itself or in combination with additional evidence related to an employee's employment authorization in the United States -- would put the employer on notice that the employee is unauthorized to work and whether employers are required to reverify employment authorization documents or inquire further as to the employee's work authorization. In the first letter, dated December 23, 1997, signed by then General Counsel David A. Martin,13 INS notes that there may be legitimate reasons for a discrepancy between the name and SSN reported by an employee on the W-2 and/or Form I-9 and SSA records. Mr. Martin's letter contains helpful information for employers on which social security numbers are legitimate and on procedures to correct a Form I-9 when information on the form is recorded erroneously. The letter also discusses considerations when an employee who has been working on a false SSN obtains a legitimate SSN and presents the new number to an employer.
On the other hand, Mr. Martin's letter provides only limited guidance to employers who face the following scenario: employees whose social security numbers appear on a Code V letter claim that they have done everything they can to resolve the discrepancy with SSA, but the SSA is unable to match the earnings to a valid name and social security number. At this point the employer is faced with the following dilemma: continue to employ the worker and face possible penalties under the employer sanctions laws, including possible criminal penalties for a practice of employing workers with knowledge of their unauthorized status, and penalties under the IRC for failure to report accurate W-2 data, or terminate the employee and face a possible claim of discrimination. Mr. Martin confirmed that INS "would not consider notice of this discrepancy from SSA to an employer by itself to put the employer on notice that the employee is unauthorized to work, or to require reverification of documents or further inquiry as to the employee's work authorization. Whether an employer has been put on notice of an unauthorized employment situation is, however, an individualized determination that depends on all the relevant facts, and there may be specific situations in which SSA notice of an SSN irregularity would either cause, or contribute to, such a determination."14
In its more recent letter, INS provided further clarification on these issues. The letter, dated April 12, 1999 and signed by then General Counsel Paul W. Virtue, suggests that employers can not ignore the consequences of follow-up activity it performs in response to a SSA mismatch letter.15
[I]f an employee has been given the opportunity for wage reporting purposes to explain and reconcile a reported discrepancy with SSA records, and has failed to do so satisfactorily, that is an entirely different situation from an initial SSA notice standing alone. The INS would be much more likely at that point to consider that employer to have violated Section 274 [of the Immigration and Nationality Act ("INA"), prohibiting unlawful employment of aliens] if it continues the employment without taking appropriate steps to reverify work authorization, and the employee is in fact unauthorized.Because there may be many reasons for a mismatch between employer records and SSA records that are unrelated to employment authorization, SSA's mismatch letters alone do not trigger an obligation to reverify work authorization. However, an employer's investigation into the cause of the discrepancy may provide the employer with information relevant to compliance with employment eligibility verification rules. If the employee has been given the opportunity to explain and resolve a discrepancy between the employer's records and SSA's records and has failed to do so satisfactorily, or if the employer learns that the employee is not authorized to work, the INS may consider the employer to have violated the prohibition against knowingly continuing to employ an unauthorized alien if the employer fails to take reasonable steps, such as reverification, to ensure that the employee is authorized to work.
Employers risk a charge of actual or constructive knowledge of employing unauthorized aliens when they choose to ignore employee reports of failed attempts to reconcile SSN data with the SSA. As Mr. Virtue states in his letter, "[I]n considering whether the totality of the circumstances rises to actual or constructive knowledge, the SSA notice is a relevant fact that would support a conclusion that it does." Because of the employer's obligation to confirm the employment authorization status of its employees listed on an SSA mismatch letter, if an employee is unable to explain and resolve the discrepancy within a reasonable period of time, then many immigration lawyers would recommend that the employee be terminated. Whether the termination is accomplished within a reasonable period of time to avoid a charge of continuing unauthorized employment will vary depending on the facts, so employers should seek the advice of counsel on whether to document communication with the employee advising of the SSA letter and the need to visit SSA if the discrepancy is not due to a clerical error in transcribing the number or name onto the I-9 or W-2 forms. If the employee admits during this process that he or she is unauthorized, the employer must likewise terminate immediately.
On the other hand, employers also risk a charge of unlawful discrimination by terminating employees because they are not able to explain and resolve SSN/name discrepancies.16 As in any employment action, employers should be careful to treat employees similarly, without respect to the employee's ethnic group, citizenship status, or nationality. Further, employers should be careful to avoid a charge of "document abuse" that could result if employees are required to show their social security cards to facilitate resolution of a mismatch. SSA Code V letters carefully advise employers to "ask [their] employees to check [their] Social Security card and to inform [them] of any name or SSN difference' between the records and the cards. In contrast, INS' April 12, 1999 letter suggests that employers "reconcile [their] records for SSA purposes [by] verifying names and SSNs by examining Social Security cards." Under IRCA, employers should avoid requiring employees to present particular documents for employment eligibility verification purposes.17
One specific situation in the cited INS correspondence on SSA mismatch letters involves the following scenario: an employee who has been working under a false SSN subsequently becomes authorized for employment and obtains a legitimate SSN. The employee then informs his employer that his SSN has changed so that his earnings can be credited to his SSA account. The employer in this situation should consider reviewing its policy regarding termination decisions when employees commit fraud in the workplace and consult competent counsel regarding the employee's possible termination. In this context, Mr. Martin's letter contains a reminder that "[k]nowing false statements on the Form I-9, or the use of false documents to obtain employment, are felonies that are not excused by subsequent grants of work authorization or lawful status."18 Mr. Martin's letter further advises that employers should not continue to rely on Forms I-9 that the employer knows were completed fraudulently; instead, the employer in this situation should require that the employee complete a new Form I-9 if the employer continues the employment, while retaining the original form for the designated period as evidence of compliance with the verification requirements at the time of hire.
Because of SSA's new policy regarding issuance of "mismatch" letters, immigration practitioners should be prepared to field more questions from clients regarding the immigration compliance issues raised when employers receive these letters. SSA suggests contacting the Employer Services Liaison Officer serving the employer's area with questions.19
For Part I of this article, click here.
Copyright © 2002 Paparelli & Partners LLP. Published with permission. All rights reserved.
11 The IRS advises taxpayers who change their name for any reason to get updated identification cards unless they intend to use their former name for legal purposes. Form SS-5, Application for a Social Security Card, is available from the SSA web site at http://www.ssa.gov, or by calling (800) 772-1213.
12 Public Law 99-603 (November 6, 1986).
13 Mr. Martin's letter is reproduced and discussed in 75 Interpreter Releases 203 (Feb. 9, 1998).
15 Mr. Virtue's letter is available on AILA InfoNet, Doc. No. 01061431 (June 14, 2001).
16 See LULAC v. Pasadena School Dist., 662 F.Supp. 443 (S.D. Tex. 1987) (school district required to reinstate undocumented aliens eligible for legalization under IRCA to custodial positions they occupied prior to termination for providing district with false social security numbers).
17 8 U.S.C. §1324b(a)(6).
18 See, e.g., 18 U.S.C. § 1546(a), which provides for fines and imprisonment for up to ten years for an individual who "knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained."
11 SSA's national employer services number is 800-772-6270. SSA's Employer Services website at http://www.ssa.gov/employer also has general information that may be helpful.
About The Author
J. Ira Burkemper is a partner in the business immigration law firm of Paparelli & Partners LLP in Orange County. His immigration practice involves business and professional visas; labor certifications; immigrant visas; consular representation in nonimmigrant visa applications; compliance with employment eligibility verification (I-9) requirements; and citizenship matters for foreign executives, managers, and professionals. He received his J.D. from the University of Southern California in 1994 and has a business degree (Master of International Management) that he received from Thunderbird (the American Graduate School of International Management) in 1985. Mr. Burkemper can be reached at firstname.lastname@example.org.