The Social Security Administration (SSA) sends a “mismatch letter” to
an employer if an employee’s name does not match the information in the
SSA database - generally, the social security number (SSN). The purpose of
the mismatch letter is to solicit the employer’s cooperation in correcting
the discrepancy to ensure accuracy of payments and benefits to eligible workers.
Although there are legitimate reasons for a “mismatch” (including
clerical error and name change), it is also the case that use of a false SSN
or use of an SSN assigned to someone other than the employee will cause a mismatch.
Under current law, an employer’s course of action upon receipt of a mismatch
letter is not entirely clear. Although many practitioners advise that the employer
take some action to address the mismatch, the mismatch letter itself cautions
the employer that the letter, standing alone, is not a basis for termination
of employment. For a full discussion of the current state of the issue, see
On June 8, 2006, the Bureau of Immigration and Customs Enforcement (ICE) proposed
a “safe-harbor” regulation describing what an employer should do
if it receives a mismatch letter in order to avoid being charged with “constructive
notice” that the employee is an unauthorized worker (if that indeed turns
out to be the case).
Under the proposed regulation, what should the employer do to benefit from
A flow chart that depicts the steps to take in order to benefit from the safe-harbor
under the proposed regulation can be viewed at www.seyfarth.com.
First, the employer should check its records to determine whether the discrepancy
results from a typographical, transcribing, or similar clerical error in the
company’s record or in communication to SSA. If there is such an error,
then the employer must correct the record, inform SSA, and then verify that
the corrected record has resolved the discrepancy. The employer should document
the manner, date, and time of the verification.
If there is no clerical error, then the employer should ask the employee to
confirm the accuracy of the record. If the employee states that the company
record is incorrect, then the employer should make the appropriate changes
according to the employee, inform SSA of the corrections, and verify that the
corrected record has resolved the discrepancy. If, however, the employee maintains
that the record is correct “as is”, then the employer must ask
the employee to pursue the matter directly with SSA. If the employee then provides
new information that would change the record, the employer must verify the
validity of the new information with SSA.
The above steps must be taken within 14 days of employer’s receipt of
the mismatch letter.
Once the record has been corrected, the proposed regulation requires that the
employer verify the corrected data with the SSA. Alternatively, if the discrepancy
arose from a notification that had been sent to the employer by the Bureau
of Immigration Customs and Enforcement (ICE) as a result of an audit or investigation,
for example, then the corrected record must be verified with the Department
of Homeland Security (DHS). Currently, there are two ways to verify:
• By registering to participate in the Basic Pilot Verification Program,
which runs employment authorization verification checks against SSA and DHS
databases. An employer can register on-line at http://www.visdhs.com/EmployerRegistration.
• For social security number verification, the employer can telephone
1-800-772-6270 or go online to http://www.ssa.gov/employer/ssnv.htm. For more
information, visit http://www.ssa.gov/employer/ssnvadditional.htm.
If the discrepancy is still unresolved 60 days following receipt of the mismatch
letter, the employer may have the employee complete another Form I-9, using
the same procedures as if the employee were newly hired except that no document
containing the SSN or alien number that was the subject of the discrepancy
may be used. In addition, no document without a photograph may be used to establish
identity. The new Form I-9 must be completed within three days following the
initial 60 day period.
Under the proposed regulation, if the new I-9 does not resolve the matter,
the employer must either terminate the employment or risk a finding that the
employer had “constructive knowledge” that the employee is an unauthorized
worker (thereby putting the employer in violation of the Federal Immigration
Reform and Control Act).
The ICE regulation is proposed. The comment period closed August 14, after
which ICE will either recall the regulation or issue it in final form.
The proposed regulation raises significant concerns for the employer community.
Those concerns include:
• The lack of defined SSA mechanism for correcting database errors and
the resulting difficulty in verifying corrections within the time limits imposed
under the proposed regulation;
• The resource strain that is likely to be experienced by employers with
large workforces or with higher percentages of mismatches;
• The possible impact on employer business operations if implementation
of the proposed regulation results in loss of a significant portion of the
Further, the proposed safe-harbor would not protect an employer from a finding
by DHS that the employer had actual knowledge that the employee was an unauthorized
Rather, the safe-harbor provision only prevents a finding of constructive knowledge.
In addition, there are a number of situations likely to arise that are not
addressed in the proposed regulation, including:
• What should the employer do where the employment authorization issue
is resolved through proper completion of a new I-9 (following unsuccessful
attempts to resolve the discrepancy through SSA)? In that situation, the employer
still has an incorrect social security number under which to report employee
• What should the employer do where the employee addresses the discrepancy
by providing a social security number that differs from the number initially
provided? In that situation, the employee may have provided false information
to the employer during the employment application and verification process,
perhaps raising the issue of termination due to misrepresentation.
• Should the employer verify (either with SSA or DHS, as applicable)
the new I-9 information that is provided by the employee?
• Does the employer get the safe-harbor if the employer verifies the
corrected information with SSA but the verification is not completed within
There is a significant increase in worksite enforcement initiatives, from a
resource as well as legislative perspective. Employers should ensure that their
employment authorization verification policies and procedures are appropriate
and sufficient and that they reflect best practices in this arena.
Seyfarth Shaw LLP offers extensive immigration and I-9 experience to assist
employers in auditing their current I-9s, in training their personnel in the
proper completion of I-9s, and in developing and implementing state-of-the-art
work authorization policies.
If you have any questions about mismatch letters please contact the Seyfarth
Shaw attorney with whom you work or any immigration attorney listed on our
website at www.seyfarth.com.
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