On June 14, 2006, the Bureau of Immigration and Customs Enforcement (“ICE”) of the Department of Homeland Security issued a proposed rule addressing how employers are to handle the receipt of social security mismatch letters. This is a proposed rule which is not yet in effect. Nevertheless, even if not ultimately implemented, it does give us insight into how ICE views the issue.
Until now the guidance provided by ICE and its predecessor, Immigration and Naturalization Service, on the issue of how an employer should deal with the receipt of a mismatch letter was very vague. The proposed rule gives us more specific insight into ICE’s perspective on the issue. The proposed rule provides that an employer will not be found to have knowingly employed an unauthorized person if after receipt of a mismatch letter the employer acts as follows:
- Within 14 days of receipt of a mismatch letter, the employer reviews the information in its records to confirm that its records match the information provided by the employee. If the records show that the employer used incorrect social security number information, the employer should correct its records and use the proper information going forward.
- If the information on the mismatch letter is consistent with the information provided by the employee and filed with the IRS and/or Social Security Administration (“SSA”), the employer must send a note to the employee explaining that a mismatch letter was received and asking the employee to contact the SSA to correct the discrepancy.
- If the employee presents a new social security number, the correctness of the number must be verified by the employer with the SSA.
- If the employee does not report back or if the employee is not able to resolve the mismatch issue within sixty days of the employer's receipt of the mismatch letter, the employer should verify the employee's I-9 form documentation as if the employee is a new hire. This should be done by completing a new I-9 by the 63rd day after receipt of the mismatch letter. The employee should not be allowed to use a social security card with the number which has been listed on a mismatch notice to complete the verification process. The employee must be allowed to present any other documents permitted under the law for use in I-9 completion. The old and new I-9 forms should be kept together.
- Employers should use a similar process for all employees who are listed in mismatch letters.
The regulation in question is not yet implemented and may never be implemented. Nevertheless, it appears to us that ICE will expect that employers take immediate steps to address mismatch letters. If those steps do not yield correct social security number information within a reasonable period of time and the employer takes no further steps, ICE may determine that the employer has continued to employ someone the employer "should have known" was not authorized to work in the U.S. in violation of the Immigration Reform and Control Act of 1986.
Employers should revisit how they are addressing mismatch letters in order to ensure that they limit the possibility of liability for knowingly hiring or retaining employees that are referenced in mismatch letters.
For more information, please contact José A. Olivieri at 414.225.4967 or firstname.lastname@example.org, or Kelly M. Fortier at email@example.com or 414.277.3460.