Last week I posted a couple of items about the Department of Homeland Security’s (DHS) “Safe-Harbor Rule,” which gives employers a method for avoiding prosecution for intentionally employing undocumented workers who have been listed in “no-match letters.” As you know if you read those items, the latest batch of “no-match letters” from the Social Security Administration (SSA) is on hold for an indefinite period. In the meantime, if you have received a no-match letter in the past, or suspect that you might be getting one in the future, is there anything you can do now to minimize future problems?
The answer to that question is yes. Employers now have two methods for finding out the extent of their no-match problem and of weeding out undocumented workers. One is the SSA’s Social Security Number Verification System (SSNVS), and the other is DHS’s “E-Verify” program. Both are free web-based programs.
The SSA program simply looks for mismatches between its records and your, the employer’s, records, and can be used for your entire workforce at any time. If you find a mismatch between your records and the SSA’s records as a result of using the SSNVS, the SSA tells you to check with the employee to find out whether you have the correct information in your records, and to resubmit the inquiry if you find an error. If that doesn’t end the problem, the SSNVS Handbook gives the following caution:
• A mismatch is not a basis, in and of itself, for you to take any adverse action against an employee, such as laying off, suspending, firing or discriminating.
• Company policy should be applied consistently to all workers.
• Any employer that uses the failure of the information to match SSA records to take inappropriate adverse action against a worker may violate State or Federal law.
• The information you receive from SSNVS does not make any statement regarding a worker’s immigration status.
What the SSA program really does, then, is give you an opportunity to reduce the number of clerical errors in your payroll database. It also will give you an idea of whether you might be of interest to DHS, since DHS is now using SSN mismatches as a method for identifying employers with a high number of undocumented workers. If you find out that you have at least 10 unresolved mismatches and those mismatches constitute at least 0.5% of your workforce, you should take additional steps now to avoid possible future liability. At least one of those steps should be signing up for the DHS E-Verify program.
E-Verify is a free Web-based system that electronically verifies the employment eligibility of newly hired employees, and can be used for new hires only. To use E-Verify, first the employer must register as a participant and sign a “Memorandum of Understanding” (MOU) that will outline the responsibilities of the employer, the SSA and DHS. Your employees who administer the program will be trained in how to use it.
E-Verify works by allowing you to electronically submit employee information taken from the Form I-9. That information is then compared to the more than 425 million records in SSA’s database and the more than 60 million records in DHS immigration databases. Results are returned in seconds.
According DHS, E-Verify is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. They claim that it will virtually eliminate Social Security mismatch letters, improves the accuracy of wage and tax reporting, protect jobs for authorized U.S. workers, and help U.S. employers maintain a legal workforce.
Once you are registered for E-Verify, you start the process after an individual accepts an offer of employment and after you and the employee complete the Form I-9. Under the terms of the MOU, the employer must initiate the query no later than the end of three business days after the new hire’s actual start date. If there is no problem, the confirmation should come through in seconds, according to the DHS/SSA website. If there is a tentative “nonconfirmation,” the employer prints out the tentative nonconfirmation notice generated by the E-Verify program and gives a copy to the employee. The employer also checks its input to make sure it did not make an error in submitting information to the system.
The employee decides whether to contest the tentative nonconfirmation and tells the employer his or her decision. If the employee decides not to contest the tentative nonconfirmation, the employer treats the employee as non-work-authorized and terminates employment.
If the employee decides to contest the nonconfirmation, the employer gives the employee a referral letter and tells the employee to visit the local SSA office, if the nonconfirmation was from the SSA, or to call the DHS toll-free hotline, if the nonconfirmation was from the DHS or when the employer finds a non-match between a non-citizen and a document generated by the E-Verify system for that employee. The employee has to follow up with SSA or DHS within 8 federal government business days. On the tenth business day, the employer queries the system to find out whether the SSA or DHS have issued a confirmation or a final nonconfirmation. If there is a final nonconfirmation, the employee should be terminated.
An employee should not face any adverse employment consequences based upon an employer’s use of E-Verify unless a query results in a final non-confirmation. The biggest downside of the E-Verify program is the lengthy list of responsibilities (15 items) that the employer must agree to take on. You can get more information about E-Verify on the DHS website here.