During 2019, more than half a million employers have already received social security no-match letters. The Social Security Administration had discontinued sending “no-match” letters (Employer Correction Request Notices – EDCOR) in 2011, but during 2019, the SSA is determined to send no-match letters to each and every employer in the U.S. who reported at least one employee with a name and social security number that did not match its records.

While the Social Security Administration itself is not an enforcement agency, and cannot penalize employers who do not respond to no-match letters, if an employer fails to take corrective action after receiving a no-match letter, and ICE (Immigration and Customs Enforcement) does a Forms I-9 audit, the employer’s lack of action may be considered constructive knowledge that the employee lacks work authorization.

What should an employer do upon receiving a no-match letter? The employer first needs to check its own records and see if there was a typographical error, or perhaps a name change. If it was merely a typo, the employer should contact SSA to make the correction. The employer should keep records of its contacts with SSA and attempts to fix the problem, to show ICE later on in case of audit. The employer should also keep a record once the SSA verifies the social security number and information.  The SSA has online resources to help employers who have received a no-match letter, https://www.ssa.gov/employer/notices.html

An ICE regulation (not in effect due to litigation) states that 30 days is a reasonable period of time for the employer to make corrections. However, the SSA no-match letters themselves state to look into the problem and make corrections online with their BSO (Business Services Online) within 60 days. The DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices recommends that employers provide employees a “reasonable period of time” to correct their information with SSA, without specifying how long is “reasonable”. The DOJ cautions that employers must not use a no-match letter as a basis to terminate, suspend or take any other adverse action against an employee. The employee must be provided the opportunity to fix the problem. See, https://www.justice.gov/sites/default/files/crt/legacy/2014/12/04/Employers.pdf

If it is not so simple as a typo or name change, the employer must request the employee to follow up with the appropriate agency, either the SSA or with DHS. One possibility is that the employee has been using an ITIN (Individual Taxpayer Identification Number). An ITIN is a number allowing a nonresident alien who lacks a social security number, to pay their taxes to the IRS. See, https://www.irs.gov/individuals/individual-taxpayer-identification-number. It is a legitimate number, but it cannot be used as a substitute for a social security number. If the work is already performed, then the worker would have to be paid as an independent contractor and issued a 1099 at the end of the year rather than a Form W-2.  The employer should consult a CPA or tax lawyer to figure out the best course. However the employer must keep in mind that an ITIN number does not give the employee work authorization, and that ICE may deem them to have had constructive knowledge that their worker lacked work authorization. The employer could end up having to pay very high fines for employing an unauthorized worker.

Many employers feel hard-pressed to find US workers. Rather than pay an undocumented person on the books, in addition to hiring unauthorized workers, the employers also pay the workers in cash and do not report part of their income to the IRS. This makes the situation even worse for the employer. Not only are they knowingly employing an unauthorized worker, but the employer may be charged with tax evasion and money laundering, and face criminal charges. For example, in 2016, two owners of a dry cleaners in New Jersey, were sentenced to more than one year prison and three years supervised release for failing to report the wages of undocumented workers and failing to pay payroll taxes, as well as for alien harboring, as they had the undocumented workers live in a house that they owned. See, https://www.irs.gov/compliance/criminal-investigation/examples-of-employment-tax-fraud-investigations-fiscal-year-2016 . So, it is always better to pay on the books and report all income to the IRS.

On the employee’s side, there are grave consequences to using someone else’s social security number and ID. Number one, if the employee mis-represents himself as a US citizen on the Form I-9, ICE can charge him with inadmissibility for which there is currently no waiver. See, INA 212(a)(6)(C)(ii)(I). Misrepresenting oneself as a U.S. citizen is a permanent bar to receiving any immigration benefit, other than perhaps withholding under the Convention Against Torture. Or, if the employee misrepresents himself as a permanent resident or as having work authorization, he again will be subject to another ground of inadmissibility for fraud and misrepresentation in procuring an immigration benefit. See, INA (212)(a)(6)(C)(i). There is a waiver available, however, only if the employee can show extreme hardship to a US citizen or permanent resident spouse or parent should they be deported from the U.S. Having US citizen children does not qualify you for a fraud waiver.

Second, the worst part about using someone else’s social security number is that you may be charged under federal criminal statutes. 18 USC 1546 applies to fraud and misuse of visa and immigration documents. 18 USC 1546(b) criminalizes the use of someone else’s ID, including for the purpose of showing work authorization.

A case currently pending before the U.S. Supreme Court, Kansas v. Garcia, Docket No. 17-834, involves several undocumented workers who used someone else’s ID in filling out I-9 forms. The lead respondent, Ramiro Garcia, a cook for a restaurant, Bonefish Grill, used someone else’s social security number when filling the I-9, W-2 and state K-4 Forms required upon hiring. The State of Kansas criminally charged Mr. Garcia with using a social security number belonging to another person in order to establish work authorization. A state jury convicted him of identity theft. The other respondents had similar stories.

The Kansas Supreme Court however, held that federal law expressly preempts state prosecutions of individuals who use another’s ID to show that federal law authorizes them to work, relying on the plain language of 8 U.S.C. 1324a(b)(5): “It is Congress’ plain and clear expression of its intent to preempt the use of the I-9 form and any information contained in the I-9 for purposes other that those listed in Section 1324a(b)(5)”. The Kansas Supreme Court held that federal law precludes a state from using not just the I-9 form but also all the information contained in the I-9 form as the basis for a state identity theft prosecution.

The question before the US Supreme Court is “(1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents” See, https://www.scotusblog.com/case-files/cases/kansas-v-garcia/

The third serious consequence is that workers who use another’s social security number or just an incorrect social security number, will not have their wages credited towards social security benefits later on when they retire. Thus, they will be missing out on a possibly large amount of money in their old age. They will also not be eligible for an exemption from the affidavit of support requirements, which provide that beneficiaries with at least ten years of social security-reported income are exempt from having the petitioner in a family petition filing an affidavit of support on their behalf.

Copyright 2019 © Heidi J Meyers, all rights reserved.