July 1, 2011 IER Technical Assistance Letter on name and Social Security number mismatch

U.S. Department oí' Justke
Civil :R.ights Divisl0n
Office ofSpecia/ Counselfol' lmmigratiol! Re/afee!
Unfair Employment Practlces - NYA
950 Pennsy/vanla Avenue, NW
Washington, DC 20530
ByE-rnail
, ,Melissa Dearing 	JUL 012011
Fowler White Boggs P.A.
50 North Laura Street, Suite 2800
Jacksonville, FL 32202 '
melissa.dearing@fowlerwhite.com
Dear Ms. Dearing,
Thank you for contacting the Office of Special Counsel for Immigration-Related Uhfair
Employrnent Practices E"OSC").' This message is in re~ponse,to_ yom, e7mail q.ated May 13,2011;"
in wh-tyh)~9:U ask about OSC's position regarding vi¡hat':'~6tronan' erhpioyer should take if an
émpI:(:jY:~,e~ü¡:not able to resolve a Social Security Number" ("SSN") no-match within a reasonaple
ped6d';~f'tiriil;\. 	y ou also ask when an employer should terminate such an ernployee.
" 	. \ 	. . 	.
.' ! ,:", ',;." •
''As you know, OSC enforces the anti-discrirninati9n provision ofthe I1m?1igr~tion and
Nationality Act (INA), codified at 8 U.S.C. § 1324b.' ose cannot providea:n 'advisory opinion on
any particular instance of alleged discrimination or on iny, set of facts involving a particular'
individual or entity. 	We can, hoyvever, provide sorne general guidelines regarding employer
, compliance with the INA's anti-discrimination provision. 	The INA's anti-discrimination
provision prohibits four types of employment-related discrimination: citizenship or immigration
status discrimination; national origin disc:dmination; unfair documentary practices during the
employrnent eligibility verification (Forrn I-9) process (i. e., "document abuse"); and retaliation for
filing a charge, assisting in 'an investigation, or asserting rights under the anti-discrimination
provision.
OSC's public1y available guidance, issued afier consultations with, among others, the SSA
and Imrnigration and Customs Ehforcement (ICE) ofthe U.S. Department ofHorneland Security
(DHS), seeks to assist ernployers in responding to "no-match" notiées in a way that treats
employees consistently regardless of citizenship status or national origino 	As you note in your
email, OSC's guidance indicates:
There are no Federal statutes or regulations in effect that define a 'reasonable
'period oftime' in connectiot). with the resolution of a no-match notice. As a
practical matter, a 'reasonable period oftime' depends on the totalitj ofthe
circumstances. Of note, in the E- Verify context SSA has the ability to put a
~entative nonconfirmation into continuance for up to 120 days. This recognizes

that it can sometimes take that long to resolve a discrepancy in SSA's database.
ose is unaware of any public1y available guidance specifically addressing the question ofwhether
to terminate an employee who is unable to resolve a no,.match within a reasonable period oftime.
However, under federal1aw, an employer has only violated 8 U.S.C. § 1324a(a) ifthat employer
knows (or has constlUctive ~nowledge) that the employee is not authorized to work. 	Mere
suspicion 01' conjecture is not knowledge. 	Se e, e.g., Collins Foods International, Inc v. INS, 948
F.2d 549 (9th Cir. 1991). 	For additional guidance on this issue, you may wish to contact ICE.
For contact information, visit ICE's website at www.ice.gov ..
As stated aboye, OSC eannot comment on whether an employer should terminate an employee
wh,o is unable to resolve the no-match within the specified time periodo 	To the extentl however,
that an employer has such a poliey, OSC would advise the employer to treat all employees
consistently, regardless of citizens~ip status or national. origino
We hope this information is helpful to yOU .
.B:g:~~
Seema Nanda 	.
Acting D~puty Special Counsel