SSA/DHS No-Match Rule

Though not an immigration agency, the Social Security Administration (SSA) has authority jointly with the Internal Revenue Service (IRS) to process tax information. Together, the SSA and IRS process the W-2 forms filed for employee taxable income each year.

If the SSA cannot match the name and social security number of a submitted form W-2 with its own records (a "no-match"), it places the social security benefits report in a special suspense file until a match can be made. Allegedly, as of 2007, there were over 225 million such records and the number is growing by 8 to 11 million each year.

The reasons for a "no-match" can be many, including not only the use of a false identity by an undocumented worker seeking unauthorized employment, but also innocent reasons, such as clerical errors by employers or the SSA, issuance of duplicate SSA numbers to individuals, name changes after marriage or divorce, and hyphenated naming conventions or those from other cultures such as mothers' names that form part of the family name of an employee.

The SSA routinely sent out letters to employers advising of "no-matches" on submitted W-2's, at least until FY 2006. Currently, no letters are being sent to employers. Previously, employers who received "no-match" letters stating that their employees' identification documents failed to match SSA records were not required to take any action by the SSA, although the IRS has limited powers to require valid information by employers for tax purposes, and generally notifying an employee of a "no-match" was considered a reasonable response by an employer.

In August 2007 DHS promulgated a rule which imposed liability on employers based on failure to respond to an SSA "no-match" letter. Under the DHS rule, employers were to have been required, beginning September 14, 2007, to fire employees whose erroneous SSA records or form I-9 records were not fixed within 90 days after a "no-match" letter was sent or face employer sanctions under the immigration laws applicable to unauthorized employment.

On October 10, 2007, the U.S. District Court for the Northern District of California issued a preliminary injunction preventing enforcement of the rule and the transmission of a letter informing employers of the rule and providing guidance which was scheduled to have been sent on Tuesday, September 4, 2007, to about 140,000 employers with at least 10 workers whose names and Social Security numbers failed to match. The judge said in his ruling "the balance of hardships tips sharply in plaintiffs' favor and plaintiffs have raised serious questions." View the original complaint that was filed by labor, civil rights and immigration groups.

A revision to the DHS rule was proposed in March, 2008 and a final rule was adopted in October, 2008. SSA continues not to send employer "no-match" letters pending the resolution of the lawsuit, but has begun a practice of sending employee "no-match" letters, which are not part of the DHS enforcement rule or the employer "no-match" program. For more information, click here.

At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices for professional Arizona immigration attorney assistance.