March 3, 2010 IER Technical Assistance Letter on name and SSN mismatch

U.S. Department of Justice
Civil Rights Division
Office of Special Coúnsel for Immigration Related
Unfair Employment Practices - NYA
950 Pennsylvania Avenue, NW
Washington, DC 20530·
March3,2010
Ann Allott, Esq.
Allott Immigration Law Firm
2305 East Arapahoe Road
Suite 100
Centeimial, Colorado 80122
Dear Ms. Allott,
This letter is in response to your letter of October 26, 2009, seeking guidance on how an
employer should,consistent with the anti-discrimination provision ofthe hnmigration and Nationality
Act (INA), 8 U.S.C. §1324b, respond to a notification by the City and County ofDenver, Colorado
("Denver") that sorne employees have provided Social Security mimbers that do not match the Social
Security Administration's records. Your letter states that one ofyour c1ients was informed by Denver
that its certified payroll contained mismatched Social Security numbers. 	According to your letter,
Denver also stated that in its view, because ofthe mismatched Social Securitynumbers, the payroll was
not a correct payroll - 	as allegedly required by local government contract - 	and that therefore the
employer was not in compliance with the contract. The local goveinment contract requires "true and
correct" payroll records, but it does not inc1ude any specification relating to treatment ofworkers.
The Office ofSpecial Counsel for Immigration-Related Unfair Employrnent Practices ("OSC")
cannot provide an advisory opinion on any particular instance of alleged discrimination or on any set of
facts involving a particular individual or entity. 	However, we can provide sorne general guidelines
regarding employer compliance with the INA's anti-discrimination provision. The anti-discrimination
provision prohibits discrimination on the basis of national origin, citizenship status or immigration
status, document abuse during the employrnent eligibility verification process, and retaliation.
Notices of a Social Security number ("SSN") no-match can come from many sources including
the Social Security Administration ("SSA"), other federal or state agencies, commercial businesses that
conduct employee background checks, third-party identity theft inquiries, and healthcare providers
providing services to an employee under an employer-provided health plan. The Social Security
Administration ("SSA") issues no-match letters to employers reporting an apparent error in either the
employer's records or the SSA records, and seeks the eiTIployer's and, ifnecessary, the employee's
assistance in conforming those records. 	See Social Security Administration, "Overview of Social
Security 	Employer 	No-Match 	Letters 	Process," 	available 	at 	http://www.socialsecurity.gov/
legislationlnomatch2.htm. 	These letters specifically caution employers against taking any adverse
employrnent action against a referenced employee based solely on receipt ofthe letter, and explicit1y
state that the letter makes no statement about the referenced employee's employrnent authorization.
In rriany instances, it is unclearwhether an entityreporting a no-match has relied on SSA records
or other sources of information in determining that there is a no-match. In addition, there are many
reasons for a "no-match," many ofwhich have nothing to do with an individuals's immigration status
or work authorization, including but riot limited to: (1) an unreported name change due to mariiage,

divorce or naturalization; (2) input errors by SSA verifiers; (3) reporting errors by an employer or
employee; (4) identity thefi; (5) errors in reporting proper culturally based hyphenated or multiple
surnames; and (6) fraud. Because ofthis, an employer should not assume that an employee referenced
in a no-match notice is not work authorized. Accordingly, the mere receipt of a "no-match" notice does
not, standing alone, constitute "constructive knowledge" on the part of an employer that the referenced
employee is not work authorized. See Immigration and Customs Enforcement, "ICE Insert," available
at http://www.ssa.gov/employer/ICEinsert.pdf ("There are many reasons for a mismatch between
employer and S SA records, inc1uding transcription errors and name changes due to marriage that are not
reported to SSA. Employers should not assume that the mismatch is the result of anywrongdoing on the
part of the employee. Moreover, an employer who takes action against an employee based on nothing
more substantial than a mismatch letter may, in fact, violate the law.").
Thus, an employer should not use the "no:"match" notice by itself as the reason for taking any
adverse employrnent action against the referenced employee or as a basis alone for reverifying the
employrnent eligibility of an employee. An employer should: recognize that SSN no-matches can result
because of simple administrative errors; check the information in the no-match notice against personnel
records; ask the employee to confirm his or her name and SSN reflected in the personnel records; advise
the employee to contact SSA to correct andlor update SSA records; and give the employee a reasonable
period of time to address a reported no-match with the local SSA office.1 Furthermore, an employer
should be mindful oftreating all employees for whom it receives a no-match notice the same regardless
of citizenship status or national origin, and an employer should not require an employee to produce
specific documents to address the no-match. 	To do otherwise may violate the anti-discrimination
provision ofthe INA. 	. 	.
I hope this information is helpful to you. Should you have any further questions, please contact
OSc's employer hotline at (800) 255-7688.
atherine A. Baldwi
Deputy Special Counsel
1Under the electronic employrnent eligibility verification program administered by the U.S.
Department .of Homeland Security, E-Verify, if an employee receives a tentative nonconfrrmation
generated by a mismatch of information in SSA' s records, SSA may place a case in continuance for up
to 120 days to ensure adequate time for a worker to obtain needed documentation or information and
for SSA to update its records. 	Although involving a different context, the 120-day E-Verify period
recognizes the ofien time-consuming nature ofresolving an SSA record mismatch.