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Attention Employers: More No-Match Letters to Come This Fall

September 5, 2019

Original content c/o: O'Brien Law LLC

According to a statement by the Social Security Administration (SSA) in response to a congressional inquiry, the SSA will be issuing a second wave of No-Match letters to employers during the fall of 2019.

The SSA had resumed the issuance to employers of Social Security No-Match Letters earlier this year, a tactic first developed in the 1990s, but which had been abandoned by the SSA in 2012. As of April 2019, in its first wave of distribution, the SSA confirmed the issuance of a No-Match letters to 575,000 employers.

Now re-packaged as “Employer Correction Request” letters, the SSA states that employers may receive a no-match letter because information on an individual employee’s Form W-2, Wage and Tax Statement, does not match the SSA’s records. The new “Employer Correction Request” (ECR) letter instructs the recipient employer to correct the inconsistency by submitting a Form W-2c, Corrected Wage and Tax Statement, through the SSA’s Business Services Online (BSO) within 60 days of receipt of the no-match letter.

An important difference between the old no-match letters and the new ECR letters is that, instead of directly notifying the employer in the letter itself of the names and SSNs of the employees found to not match the SSA’s records, the ECR requires an employer to first register online with the SSA’s “Business Services Online” to view the names of the employees.  This approach by SSA raises new questions about whether an employer might be creating an evidentiary trail, or lack thereof, which might later be used against it in an employer sanctions proceeding under the Immigration Reform and Control Act (IRCA), the federal law requiring I-9 compliance.

The ECR letters appear to represent a new front being opened by an Administration which has been openly hostile to immigrants, and thus hold the potential to ensnare Employers in the cross-fire.  It remains to be seen how the ECR letters will play out in IRCA enforcement actions and in the courts, but this much is already clear:

  • An ECR letter that is not properly addressed by an employer can expose the employer to potential liability under IRCA for knowingly hiring or continuing to employ an individual that is not authorized to work in the United States.
  • Upon receipt of an ECR letter, it is crucial that employers, with the assistance of counsel, take proper steps toward identifying and correcting the asserted Form W-2 errors.
  • Such steps go beyond simply following the SSA direction to register online to view the names and SSNs of employees said to not match, and include taking additional protective measures to help insulate your company from potential liability. The specific steps to take and the appropriate timeline of events will depend on the particular employer's situation and  the facts involved.
  • Most importantly, employers should never treat an ECR letter - or any objections an employee may raise about the employer's no-match procedures - as evidence of any employee's unauthorized or undocumented status; likewise, an employer cannot use the letter alone as a basis to take adverse action against the employee.

Moreover, the receipt of an ECR no-match letter could be indicative of larger administrative inconsistencies and/or errors within an employer’s I-9 records and, should serve as a prompt for employers to perform an internal audit of their I-9 records. Given the recent and dramatic increase in Immigration and Customs Enforcement (ICE) I-9 audits (a 439% increase in workplace I-9 audits from Fiscal Year to 2017 to Fiscal Year 2018), it is more important now than ever that employers ensure that all of their I-9 records are complete, accurate and up-to-date.

Please contact O'Brien Law LLC with specific questions about dealing with the new ECR no-match letters, and conducting "friendly" internal I-9 audits to check the health of your Company's I-9 compliance.


About O'Brien Law LLC
O'Brien Law LLC is a client-centric law firm specializing in Business Immigration, working with business owners, HR executives and professionals, in-house counsel and other key personnel to serve the immigration needs of employers large and small, in all industries. Based in Alexandria, Virginia just outside of Washington, DC, they serve business clients nationwide employing individuals from throughout the globe
. Their single-minded focus is on accomplishing your company's business objectives for cross-border movement of personnel. They also provide robust defense to government audits of employer I-9 compliance, and offer “friendly audits” to preventatively check the “health” of your I-9 Forms.