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Remember when political opponents attacked California gubernatorial candidate Meg Whitman over the social security no-match letter she received in the early 2000’s regarding her maid? Many employers may have wondered just what those letters were all about, because for the past three years, the Social Security Administration stopped sending them out. As the saying goes, “They’re Back,” and if you are an employer, you need to be concerned.

Employers will once again have to worry about “getting it right” upon receipt of a no-match letter. And, unfortunately, once again, there are only questions, and no clear answers.

The government states it will send a letter when employee information on the W-2 Form is either incomplete or a reported name or Social Security number does not match with the government’s records. The letters will be sent on an employee-by-employee basis. (In the past the Social Security Administration sent the employer a letter with a listing of names that had a number mismatches.)  According to the administration, the new letters will be sent when the government is unable to reach the individual directly about the discrepancy.

The new process is replete with legal issues for the employer. The letter tells the employer to first compare the information listed on the government’s letter to the employer’s records. If the records match, the employer is directed to “ask” the employee to give the name and Social Security number exactly as it appears on the employee’s Social Security card. Then, the form notes “(While the employee must furnish the SSN to you, the employee is not required to show you the Social Security card. But, seeing the card will help ensure that all records are correct.”) If there is a problem between the government’s records and the social security information given/shown by the employee, then the employer is directed to tell the employee to contact any Social Security office.

The question for the employer now becomes, what do you do?

First, as you may recall, you are not allowed to ask employees for their social security card as part of the I-9 process.  Now, you are being requested to “ask” for the information, and the suggestion is strongly made that you look at the card. There are no good answers yet, but here are a few tips to consider if you get these letters:

1. Don’t rely on a copy of the card in your records if you did receive it for I-9 purposes.

2. If you are going to ask for the actual SSI card, you need to make sure you always ask for the card from each employee who is the subject of the no-match letter. Asking only employees of a particular race or culture would be discriminatory.

3. If you decide to always ask for the card, then either always make a copy of the card, or never make a copy of the card. Whatever you decide, be consistent.

4. If the card looks fake, you are probably now on notice that the employee is not lawfully working. If you have reason to believe the card is fake, hope that the employee doesn’t show up to work again. If the employee returns to work, you will need to determine what next steps you may legally take to determine their status.

5. If you determine that the Social Security card does not show the employee’s correct name or Social Security number, or there is some other error, you must direct the employee to any Social Security office.

Unfortunately, the letter is completely silent about how long the employee has to correct the problem, and what you are to do if the problem remains uncorrected. On the other hand, you are directed by the letter to start using the correct name or Social Security number if you determine either is incorrect. So, how do you get the correct information? Stay tuned…….

If you need assistance with issues arising from receipt of the no-match letters, the North Carolina Employment lawyers at Sands Anderson will be pleased to hear from you.

We’d also like to know what you think. What problems do you anticipate these letters will present for you?

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• Originally posted on  Virginia Workplace Law

For years, foreign nationals who wanted to become U.S. permanent residents (green card holders), paid Ms. Camarillo as much as $12,000 to arrange marriages between them and U.S. Citizens. The foreign nationals then used their marriage to a U.S. citizen as basis for obtaining U.S. permanent residency and often citizenship.

Ms. Camarillo recruited her children, grandchildren, nieces, and nephews (all U.S. citizens) into the conspiracy. Each was paid a portion of Camarillo’s $12,000 fee for agreeing to marry foreign nationals.

The new rule is applicable to Federal contractors and subcontractors who are awarded a contract, on or after September 8, 2009, which contains the Federal Acquisition Regulation (FAR) E-verify clause. These employers must enroll and begin using the E-verify program within 30 days of the contract award date.

Although there has been controversy surrounding the E-Verify program, the program is voluntarily used by many employers in an attempt to minimize liability. As of July 2009, USCIS reports that more than 148,000 employers used E-Verify to electronically verify their workers’ employment eligibility.

For more information on the E-Verify program, please contact our offices.

So what can U.S. businesses do to mitigate exposure stemming from their I-9 programs? It is imperative, now more than ever, that employers implement I-9 Compliance Plans providing four primary tools to mitigate potential liability.

Tool 1: Proper I-9 Training
The majority of Form I-9 errors have little to do with unauthorized workers and more often involve a lack of proper training resulting in inadvertent errors. Errors are also often a result of a lack of understanding of Immigration Documents such as Nonimmigrant and Immigrant visas, Employment Authorization Documents, and Permanent Resident Cards.. Knowing which documents are acceptable and which require re-verification in the future can be quite technical.

Tool 2: The Self Audit
Most often I-9 forms are completed, filed, and never reviewed thereafter. By conducting regular self-audits, employers not only strengthen their “good faith” compliance but provide themselves with the opportunity to evaluate their progress and identify areas of weakness requiring further training or amendment of their I-9 Compliance Program.

Tool 3: The Independent Audit
Because these issues can be highly technical, having regular independent I-9 Audits conducted by counsel not only greatly strengthens the employer’s “good faith” compliance, but provides further opportunity for review of procedures and error-spotting by an attorney with greater expertise in the field.

Tool 4: E-Verify
E-Verify (formerly the Basic Pilot/Employment Eligibility Verification Program) is an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA). Participating employers can check the work status of new hires online by comparing information from an employee’s I-9 form against SSA and Department of Homeland Security databases.

Although in this age there is no absolute protection for employers against potential liability in connection with I-9 Compliance, these tools are vital in mitigating potential liability.