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SSN Mismatch Letters:
Now that the DHS has
Weighed in with Regs


Although the safe harbor regulations proposed last month by the Department of Homeland Security won't be final until the public comment period is over August 14 and the DHS makes whatever revisions are required, you should assume the safe harbor requirements
will resemble the draft version already released.

What to do if the mismatch letter arrives in your in-box? 

1.  This will be notice from the SSN that you have submitted employee-SSN information that shows a mismatch.  In the case of the DHS you will be advised that an immigration status document or Employment Authorization Document, as presented by an employee of yours, is actually assigned to another person (or that there is no record of such a document being issued to the employee).

2.   Technically, this means you have "constructive knowledge" that an illegal worker is on your payroll.  What you do thereafter must be chronicled in detail.

3.   First, you go to your records and confirm that they are correct.  If there was a clerical error, you make the correction and notify the Social Security Administration

4.  Then you MUST VERIFY THAT SSA HAS ALSO MADE THE CORRECTION.  Forget about writing the agency to request a written verification;  call 1-800-772-6270.  At this writing we are advised that this line is manned from 7 to 7 EST Monday through Friday.

5.  If the above step does not solve the problem, you must address it with the employee.  If the employee insists the SSN information is correct, direct him to resolve the discrepancy with the SSA.  Follow up soon thereafter.  If the employee insists your records are correct, check them again and follow up with him about their accuracy or need for correction.

6.  If you get a DHS letter about mismatches, don't look for any regulations representing a roadmap from the Department about what to do (they haven't been published yet).  We suggest you follow the steps outlined in the letter.  You may need to confront the employee the same way you would after you get an SSA letter.

7.  If the mismatch problem is unresolved after sixty days of receipt of the agency's initial letter, you should promptly get your hands on a fresh I-9 and re-verify the employee's work eligibility and identity.  He fills out Section 1 as if he were a new hire.  The proposed regs give you three days to re-verify.  NOTE THAT AS TO SECTION 2 OF THE I-9, THE EMPLOYEE MAY NOT PRESENT THE SAME DOC THAT PROVOKED THE MISMATCH LETTER, AND MAKE SURE THAT THE ALTERNATIVE DOCUMENT INCLUDES A PHOTO.

8.   You must retain the new I-9 as well as the original one.

9.   The DHS regulations are silent about your right to terminate the employee if he cannot present new identity and authorization documents.  In our view, it is a reasonable risk as long as you avoid discrimination when administering the dismissal.