Immigration Audits are Increasing Throughout Every Industry
Seymour Rosenberg
One of the most perplexing practical problems facing employers today involves a situation where the employee’s name and Social Security Number (SSN) do not match. While there are many reasons why a “mismatch” may exist, which may have nothing to do with immigration status, employers often ignore SSN mismatches at their peril. Not only are there IRS obligations to provide accurate payroll tax information to the government, but information discovered by the employer when acting out on knowledge of a mismatch could lead to a process where the employer must terminate the employment of the individual involved, or face penalties under immigration law.
While employees should be notified as to the basis for why the employer believes the name and SSN do not match, it is improper to assume that such an employee is not legally entitled to work in the United States. Employers should never fire employees solely because of information concerning a mismatch, even if the information comes from a so-called “mismatch letter” from the SSA. Of course, if an employee admits to being undocumented, the employer has no legal choice other than to terminate the employee immediately, no matter how long employed and no matter how painful the decision.
Employees must be notified that there is a problem with the SSN and that it is up to the employee to resolve it and to report the correct information. While there is no specific rule, employers often give thirty, sixty and up to ninety days for the employee to resolve the problem with the SSA or other governmental authorities, such as Immigration Customs and Enforcement (ICE). Employers should document the steps that it has taken once it receives information about a mismatch, for example, notify the employee in writing and preserve managerial actions with file documentation, including reporting to the SSA when the employee submits information appearing to correct the situation.
However, if an employee fails to provide credible accurate information, they should be terminated for that reason. It would be wise for an employer to develop a policy requiring termination for failure to provide such information and to enforce the policy consistently. With the Administration’s continuing emphasis on pursing employers for improper I-9 records and failure to handle mismatches properly, immigration compliance must be an important part of every employer’s strategy. ICE has recently issued 1000 Worksite Audit Notices of Inspection and has indicated that these and other inspections will touch on employers of all sizes and in every state—no one industry being immune from scrutiny.
This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.