Trump Administration to Resume Social Security Mismatch Letters to Employers

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At a glance

• In Spring 2019, the Social Security Administration will resume sending notices to employers when Social Security Number information reported for one or more employees does not match the agency’s records.
• Though a mismatch notice does not necessarily mean that an employee lacks work authorization, employers must take prompt action and have adequate procedures in place to minimize the risk of immigration-related penalties.

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The situation

The Social Security Administration (SSA) recently announced that it will resume sending “educational correspondence” (EDCOR) to employers and third-party service providers (such as payroll companies) where there is a mismatch between Social Security Number information provided by the employer and the information in SSA’s records.

The resumption of mismatch letters – expected in Spring 2019 – is part of the Trump Administration’s overall efforts against unauthorized employment.  Mismatch letters had largely been on hold in recent years.

What employers should do when a mismatch letter is received

An SSA EDCOR letter does not necessarily mean that an employee lacks employment authorization, but employers must take prompt action to resolve mismatches.  They must also have adequate internal procedures to address all legal considerations and minimize risk.

Immigration authorities have treated an employer’s inaction after receipt of a mismatch letter as evidence that the employer had constructive knowledge of unauthorized employment.  At the same time, employers who make hasty adverse personnel decisions upon learning of a mismatch risk allegations of improper labor practices and discrimination.

Each employer should create a compliance program that fits its particular business model and circumstances, but recommended practices include the following:

• Check internal records for possible errors or omissions
• Explain to affected employees their obligation to rectify data discrepancies
• Set firm but realistic deadlines for resolution of discrepancies
• Before making a decision to terminate employment because of an unresolved SSN mismatch, escalate to senior management and legal counsel
• If the employer has an “honesty policy” that penalizes misrepresentations on job applications, ensure that the policy is applied consistently

If your organization receives an EDCOR letter or otherwise learns about a Social Security mismatch, please contact your Fragomen team or the firm’s Government Strategies and Compliance Group to assess potential risks and implement appropriate compliance procedures.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.