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What's an Employer to do When They Receive an SSA Mismatch Letter?

Dec 29, 2007
Attention small business owners. Recently, Immigration has dramatically increased workplace enforcement of Immigration law, after the failure of Congress to pass comprehensive immigration reform. The latest tool that they are using is working together with the Social Security Administration to ferret out unauthorized aliens in the work place.

For years the Social Security Administration ("SSA") has been sending employers so called "mismatch letters" when the name and social security number of an employee did not match. Significantly, those letters did not require the employer to terminate the employee in question. Rather, they only asked the employer to clarify the situation with his employee, and to correct the error.

However, now Immigration has issued a new regulation whereby they have changed the definition of an employer's "constructive knowledge" that they are employing an unauthorized alien. Under the new regulation, if an employer receives an SSA Mismatch Letter. In order to take advantage of the so called "safe harbor" provision, they are required to confront the employee and to give him a period of 90 days to resolve the problem. If at the end of 90 days, the employee is unable to, the employer is required to terminate the employee or be subject to potential civil and criminal liability for "knowingly" employing an unauthorized alien.

Just before Immigration and Customs Enforcement ("ICE") was going to send out these "safe harbor" letters to hundred's of thousands of employers in September, a Federal Court Judge, issued a Preliminary Injunction, preventing ICE from sending out their letters together with SSA Mismatch Letters.

ICE has now announced that they will be issuing a proposed new regulation that will attempt to meet the Court's concerns and simultaneously filed an appeal to the 9th Circuit Court of Appeals. In the meantime, what is an employer to do when they receive an SSA Mismatch letter? If they terminate the employee, they may be subject to liability for national origin discrimination, if they don't they face liability from ICE for "knowingly" employing an unauthorized alien.

Employers need to get ready now, so that they will be prepared when Immigration knocks on the door. Here are seven secrets to surviving an Immigration Audit in 2008:

#1 Do an Internal I-9 Audit now. Don't wait for Immigration to raid your workplace or to send you a letter demanding to inspect your I-9 Forms within 72 hours to first review them. Do it now. Compare your payroll with your I-9 forms and make sure that you have an I-9 Form for all employees. Make sure that they all have been filled out correctly and completely.

#2 Centralize the I-9 Process. Train 1 or 2 employees in the technical process of filling out I-9 forms. Then have them always be in charge of completing the I-9's, instead of random supervisors, who may or may not be familiar with the process.

#3 Do not put the I-9's in the Employee's Personnel file. Keep the I-9 forms in a separate file. You don't want to have to turn over your employee's personnel files to Immigration, since they contain privileged information.

#4 Always examine the original documents - not copies. It is critical that you examine the original document, "green card", driver's license or social security card, not a copy.

#5 Copy the front and back of all documents that were examined, and attach to the I-9. Although employers are not legally required to make a photocopy of the documents that they examined, doing so, demonstrates the employer's good faith, and if questioned, the employer can point to what documents they relied upon, even if they ultimately prove to be fraudulent.

#6 Establish a written policy that fraud in the employment application process, Will be grounds for termination. By doing so, the employer will clearly have the right to terminate an employee if it later discovers that he submitted fraudulent documents to obtain employment.

#7 If you receive a Social Security Mismatch Letter, contact your attorney first, before responding. The Social Security Administration is sending thousands of Social Security Mismatch Letters to employers, informing them that there is a "mismatch" in the names and social security numbers of some of the employees, and ICE may include a letter as well. Since there may be serious legal consequences for the employer, immediately contact experienced legal counsel before responding.
About the Author
For further information and a free evaluation of your case, contact us at:
Law Office of Eli M. Kantor 9595 Wilshire Blvd., Suite 405 Beverly Hills, CA 901212 (310) 274-8216
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