Advance Copy of Final Regulation to Rescind the Social Security No-Match Regulation Released

Recently the Department of Homeland Security (DHS) released an advance copy of the final rule rescinding the agency’s regulations regarding the legal obligations of employers receiving no-match letters from the Social Security Administration (SSA). The rule rescinds DHS final regulations previously issued on August 15, 2007 and October 28, 2008, entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” Publication of the final regulation in the Federal Register is expected within the next several days, and the rule will take effect 30 days after the publication date.

A no-match letter is a letter from SSA notifying an employer that the social security information submitted by the employer for certain employees does not match the information in SSA’s databases. The DHS no-match regulation had expanded the concept of “constructive knowledge” and had provided that employers could be held liable for the knowing employment of unauthorized workers where the employer failed to take sufficient steps to resolve a social security mismatch after receiving a no-match letter from SSA. The regulations also provided employers with a set of “safe-harbor” procedures after receiving a no-match letter. Employers who precisely followed those procedures would not be held liable for the knowing employment of any unauthorized workers based upon the receipt of the no-match letter.

However, as a result of a legal challenge filed by a number of labor and business organizations, DHS had been prohibited from implementing the social security no-match regulation, and SSA has not issued any no-match letters for several years. According to the preamble to the rule, DHS is rescinding its no-match regulations to focus its enforcement efforts on increased compliance through improved verification, including participation in E-Verify, the U.S. Immigration and Customs Enforcement’s Mutual Agreement Between Government and Employers (IMAGE), and other programs.

Employers need to continue to ensure that they have policies and procedures in place to follow up and resolve any no-match discrepancies that may arise in the future.