Social Security Numbers That Don’t Match-Employer Liability

The Department of Homeland Security has recinded a 90 day safe harbor for employers who receive a notice from the Social Security Administration that a social security number being used by one of their employees does not match the name on file with the Social Security Administration. The rule would have protected employers for 90 days to try and resolve the issue without incurring any liability for employing individuals who lack authorization to work in the United States. Now if an employer receives a mis-match letter you MUST take affirmative steps to try and resolve the discrepancy.

The problem is once you receive the letter from the social security administration you will be deemed to have “constructive knowledge” that the employee may possibly not be authorized to work. U.S. Immigration & Customs Enforcement (ICE) will expect you to take steps to resolve the discrepancy. As you may recall from previous articles I have told you that ICE has been conducting I-9 audits and they are using other agencies to assist them. The pressure is mounting. Remember, it is a $10,000 fine per individual found not have the proper work authorizations. I have clients who give me “push back” because they have some individuals who are not authorized yet they do not want to get rid of them because “they are my best worker.”  No problem, fines and jail are becoming the option. Personally I love my staff but I’m not going to jail for any of them!

Here’s what you should do. Keep the 90 day benchmark. Advise the employee to go to the social security administration and obtain proof that that their social security number is valid. If there is no resolution using the social security number, you should have the employee fill out another I-9 using documentation other than the social security card. If they cannot produce other supporting documentation you have to make a decision.

By the way, for those employers using “E-Verify” for new hires the window is only ten days because they are new hires. Employees who have been working for awhile are given the additional time because they have already established a “property right” (their job) and are entitled to a longer opportunity.