August 29, 2011 IER Technical Assistance Letter on use of SSNVS

OCR transcription for search; preserved printed pages are authoritative

JEFARTMENT OF JUSTICI

U.S. Department of Justice
Civil Rights Division

Office of Special Counsel for Immigration-Related
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509

AUG 2 9 2011

By email (luried@gtlaw.com)
Dawn M. Lurie, Esq.
Greenberg Traurig, LLP
1750 Tysons Blvd., Suite 1200
McLean, VA 22102

Dear Ms. Lurie:

This letter is sent in response to your July 13, 2011, inquiry to the Office of Special
Counsel for Immigration-Related Unfair Employment Practices (OSC). In your letter, you seek
guidance on behalf of a client as to whether the Social Security Administration's Social Security
Number Verification Service (SSNVS) may be used to verify employment eligibility and how
using the system for this purpose may implicate the anti-discrimination provision of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1324b.

As you know, OSC enforces the anti-discrimination provision of the INA. The anti-
discrimination provision prohibits four types of unlawful conduct: (1) citizenship status
discrimination; (2) national origin discrimination; (3) discrimination during the Form I-9 process
("document abuse"); and (4) retaliation for filing a charge or asserting rights under the anti-
discrimination provision.

This office cannot give you an advisory opinion on any set of facts involving a particular
individual or company. However, we can provide some general guidelines regarding compliance
with the anti-discrimination provision of the INA. Please note that the particular facts of any
given situation will determine the way in which the law applies.

As you indicate in your letter, SSNVS is a service offered to employers by SSA to ensure
accurate wage reporting, and not for the purposes of employment eligibility verification. See
SSNVS Handbook, available at http://www.ssa.gov/employer/ssnvs_handbk.htm (stating that
SSNVS should be used only for the purpose for which it is intended - "SSA will verify SSNs
and names solely to ensure that the records of current or former employees are correct for the
purpose of completing Internal Revenue Service (IRS) Form W-2 (Wage and Tax Statement)").
See also ICE Mutual Agreement between Government and Employers (IMAGE) Best Practices,
available at http://www.ice.gov/image/best-practice.htm ("Use the Social Security Number
Verification Service (SSNVS) for wage reporting purposes."). Furthermore, SSNVS materials
caution against using information received through SSNVS outside of the wage-reporting
context:

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· A[n SSNVS] mismatch does not imply that the employer or the employee
intentionally provided incorrect information.

· A[n SSNVS] mismatch does not make any statement about an employee's
immigration status and is not a basis, in and of itself, for taking any adverse
action against an employee. Doing so could subject you to anti-discrimination or
labor law sanctions.

SSNVS Pamphlet, available at http://www.socialsecurity.gov/employer/ssnvspamphlet.htm. See
also SSNVS Handbook ("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. .. . The
information you receive from SSNVS does not make any statement regarding a worker's
immigration status.").

Consistent with this guidance from the SSA, OSC's "Name and Social Security Number
(SSN) 'No-Matches' Information for Employers," available at
http://www.justice.gov/crt/about/osc/pdf/publications/SSA/Employers.pdf, cautions employers
that receive information that the name and Social Security number submitted for an employee do
not match not to make certain assumptions. Specifically, employers should not "[a]ssume the
no-match conveys information regarding the employee's immigration status or actual work
authority" or "[u]se the receipt of a no-match notice alone as a basis to terminate, suspend or take
other adverse action against the employee."

Further, an employer that, acting on its own initiative, selectively runs employee
information through SSNVS for employment eligibility verification purposes on the basis of
employees' citizenship or immigration status or national origin may be violating the INA's anti-
discrimination provision. Similarly, an employer that, acting on its own initiative, uses SSNVS
results to selectively take adverse action against certain employees based on their immigration
status or national origin (real or perceived) may also be violating the INA's anti-discrimination
provision.

We hope this information is helpful.

Sincerely,
Seema Nanda
Acting Deputy Special Counsel

By:
CE ALA

C. Sebastian Aloot
Acting Special Litigation Counsel