Written by Nicole C. Dillard, Esq.

Updates in Social Security "No Match" Letters-What This Means for Employers

Recent Developments

In recent weeks, there has been a development of new regulations issued by the Department of Homeland Security (DHS), providing guidance to employers who receive "No Match" letters from the Social Security Administration (SSA). The "No Match" letter is a response to an Employer's W-2, which contains an employee's name and social security number, which may contain information that is inconsistent with the Social Security Administration's records. In the past, when these "No Match" letters had been received, employers have had loose guidelines in which to follow in order to reconcile the discrepancy. Despite the new regulations, SSA has not changed its procedures for issuing employer no-match letters and SSA guidance on how to correct social security records remains unchanged by the DHS regulations. The following discusses the added responsibility of employers to determine the legal employment status of their foreign workers.
The Department of Homeland Security has recently issued final regulations highlighting ways in which employers should know that an employee is unauthorized to work in the U.S. These regulations also describe "safe harbor" procedures for employers that receive a no-match letter from the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to protect them from being considered as having "constructive knowledge" that an employee is unauthorized to work in the U.S.

As many of you already know, existing federal law prohibits knowingly employing an individual who is unauthorized to work in the U.S. Under 8 USC section 1324a(a)(2), it is unlawful for an employer, after hiring an alien, to continue to employ the alien in the U.S. "knowing" the alien is (or has become) unauthorized with respect to such employment. An employer can violate this section by having either actual or constructive knowledge than an employee is unauthorized to work. The term "knowing" includes the actual and constructive knowledge. While having "actual" knowledge is self-explanatory, "constructive" knowledge consists of "knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person through exercise of reasonable care, to know a certain condition"
The final regulations have amended the definition of "constructive knowledge" by providing additional examples to an employer of ways an employee could be an alien who is not authorized to work in the U.S. Generally, when there is a discrepancy between the information presented to the Social Security Administration by the employer and the SSA's records, employers may receive either a "No Match" letter from the Social Security Administration or in some cases, a "Notice of Suspect Documents" from DHS. For those who are not familiar, the "Notice of Suspect Documents" is sent to an employer to indicate that DHS has been unsuccessful in confirming that an employment authorization document or an immigration status document that has been used by an employee in completing an I-9 form was not assigned to that specific person or was not assigned at all. This type of notice is usually sent to an employer after an I-9 audit. To that end, the new regulations have included the following examples of an employer having "constructive knowledge" than an employee is an unauthorized alien:

(1) The employer has received written notice from the Social Security Administration that the combination of name and Social Security number submitted for an employee does not match SSA records;

(2) The employer has received written notice (Notice of Suspect Documents) letter from DHS that the immigration status or employment authorization document presented or referenced by the employee in completing Form I-9 was assigned to another person, or that there is no agency record that the document was assigned to anyone; and

(3) The employee requests the employer's sponsorship of the employee for a labor certification or visa petition (and the employee does not have another type of work authorization such as Temporary Protective Status)
The final regulations explicitly state that if the employer fails to take reasonable steps after receiving such notice, and if the employee is in fact unauthorized to work, then the employer may be found to have 'constructive knowledge' of that fact, and may be penalized accordingly.

Safe Harbor

Despite the fact that there has been increased enforcement provisions holding employers responsible for their hiring practices, the new regulations also contain a "safe harbor" provision. While employers are not required to follow the steps to ensure a safe harbor, the safe harbor provides a clear method for employers to implement reasonable care in addressing no match letters in order to ensure that DHS will not use such a letter as a basis to conclude that the employer had constructive knowledge that the employee was unauthorized to wok in the US. Employers who respond to the receipt of SSA or DHS letters by following the steps outlined below will be effectively immunized from a DHS finding that the employer had constructive knowledge based on a receipt of those documents.

In order to resolve the discrepancy, an employer should proceed with the following steps upon receipt of a "no match" letter:

1. Within 30 days of receiving the 'no match' letter, the employer must check personnel records promptly to determine whether the discrepancy results from a typographical or other similar clerical error in the employer's records. If that type of error exists, the employer must notify the correct the error, inform the relevant agency (SSA or DHS), in accordance with the instructions.

2. If there is no clerical error and the issue is notresolved, within 30 days of receiving the "no match" letter, the employer should ask the employee to confirm that the employer's records are correct. If they are not correct, the employer must take the actions needed to correct them, inform the relevant agencies and verify the corrected records with the relevant agency. A discrepancy will be considered resolved only if the employer verifies with the SSA or DHS, as the case may be, that the employee's name matches an SSN assigned to that name in SSA's records and the number is valid for work or is valid for work with DHS authorization.

3. If the discrepancy is not resolved within 90 days of the no match letter, the safe harbor procedure requires the employer and employee to complete a new Form I-9 as if the employee were newly hired with certain restrictions;
It is worth noting that the final regulations deal with constructive knowledge and would not preclude DHS from finding than an employer had actual knowledge that and employee was an unauthorized alien. An employer with actual knowledge could not avid liability by following the procedures described in the final regulations. The latest regulations offer the needed assistance for employers who receive "no match" or "notice of suspect documents" letters.

The new regulations were scheduled to go into effect on September 14, 2007. However, a temporary restraining order issued by a federal court in California has delayed this effective date and has brought to the forefront the controversy of DHS' authority to regulate in Social Security territory. Despite the fact that employers are (temporarily) not required to adhere to the procedures in the regulations, it would be in your best interest to educate yourself on the new responsibilities with regard to the No Match letter since it is likely that some form of this enforcement will be likely. The real challenge to employers will to meet the requirements of this regulation while at the same time avoiding claims of discrimination.

 

Social Security “No Match” Letters:  Employer’s Obligations Under the Law

Summer 2006 invited many new immigration proposals, including some that were very hotly debated.  In light of tackling illegal immigration, many immigration proposals have suggested increased accountability for employers who hire workers—illegal or otherwise.  In June 2006, the Immigration and Customs Enforcement (ICE) published a notice in the Federal Register proposing to amend the current regulations relating to the hiring and retention of illegal workers.  This new regulation, if and when adopted, would provide a safe harbor to employers who receive “no match” letters from the Social Security Administration or the Department of Homeland Security.  Comments on the proposed regulation were due to by August 2006.

Current I-9 regulations requires that employers complete and retain I-9 forms verifying each worker’s employment eligibility as set forth by the Immigration Reform and Control Act of 1986. Many Human Resources professionals even retain copies of those documents used to establish identity and ability to work with the I-9 forms.   Often, however, when employment tax returns are filed with the Internal Revenue Service, and information about employees and their Social Security numbers are transmitted to the Social Security Administration (SSA), there is no match between the information submitted by the employer and the SSA’s records.  As a result, the SSA sends the employer a “no match” letter, advising them that the employee’s name and social security number does not match SSA records.

Since the employer’s receipt of a “no match” letter by no means indicates that a worker is unauthorized to work, the proposed regulation attempts to clarify an employer’s responsibility under the current law and to provide suggestions for avoiding liability after receiving a “no match” letter.

The proposed amendment outlines the following safe harbor provisions, which, if taken in a timely manner, will protect an employer from being found to have had knowledge (implied or actual knowledge) to have hired an illegal worker.

  • Within 14 days of receipt of a “no match” letter, the employer should promptly check its records to determine whether the discrepancy results from a clerical error in the employer’s records or its communication to the SSA or DHS.
  • If checking it’s records does not resolve the discrepancy, an employer would ask the worker to confirm that they employer’s records are correct.  If incorrect, the employer must take steps to correct and to verify the corrected records with appropriate agency.  If this does not resolve the issues, the employer should ask the employee to pursue and resolve the matter with the relevant agency (usually SSA) within 60 days of receipt of the “no match” letter).
  • If the discrepancy is not resolved within 60 days of receipt of the “no match” letter, the employee’s identify and work authorization may be verified by completing a new I-9 form within 63 days of the receipt of the “no-match” letter.
  • Employers who receive a “no match” letter and fails to take reasonable steps after receiving it, the employer may be found to have sufficient knowledge to infer that they have knowingly hired an individual who is not authorized to work in the United States.  An employer found to have had constructive knowledge and have continued to employ and unauthorized worker may be liable for civil and/or criminal penalties, depending on the charges.

Please note that employers are prohibited from requesting specific employment eligibility documents or requesting more documents than stipulated by law.  Doing this would constitute “document abuse” and would be subject to penalty.  Furthermore, employers should apply employment and identity verification procedures, not singling out any workers who may appear to be “foreign.”  By taking certain precautions when hiring individuals will prevent potential problems in the future.

The Oden and Dillard Group will continue to keep you informed as to the policies affecting employers and their responsibilities regarding their employees.  In the meantime, since all immigration matters are unique, we suggest that you contact an attorney experienced in immigration law to discuss your individual needs.

DISCLAIMER: The information provided here is of a general nature and may not apply to any specific or particular circumstances.  It is not to be construed as legal advice.

The Recruitment of Foreign Teachers for our Schools

It is recruitment season for a special industry of workers…School teachers.  Each year, many schools begin the school year with far less than the desired number of qualified teachers.  While recent media attention in immigration has focused on everything from the illegal immigrants that “sneak” over the border to the executives in the high-tech industries actively lobbying Congress because the United States lacks in the numbers of qualified scientists and engineers to keep us competitive with other countries, it is important not to overlook other vital occupations which have increased in need for foreign workers in those areas. 
The U.S. continues to face a shortage of qualified teachers, especially in the areas of mathematics, science, special education and bilingual education.  Consequently, every year teacher recruiters are actively recruiting teachers to teach in our schools for contract dates ideally beginning July 1 of each year.  However, in many cases, recruiters are still looking to staff positions well after the school year has begun.  Therefore, coupled with the challenge of recruiting teachers for the new school year in order to fill new positions created by the overpopulated schools, recruiters are anticipating vacancies left open by retirements, teachers leaving the school district for greener pastures (or in some cases, leaving teaching all together), and are faced with filling those ‘hard to fill’ positions.  Thus, they are following a recent trend of recruiting foreign teachers abroad.  As a result, many recruiters are turning to countries like India and the Philippines, and in some cases, the Caribbean islands, which offer a ready source of qualified, English-speaking teachers, often with excellent training in math and science. 

CURRENT RECRUITMENT METHODS

Foreign teachers are most often recruited to come to the United States on a J-1 visa, as a research scholar.  When entering on the J-1 visa, the teacher is generally allowed to stay in the U.S. for up to three years and, absent a waiver, are usually required to return to their home country for two years in order to meet the ‘Two year home residency’ requirement.  School districts often use the services of ‘J’ sponsoring organizations (who receive their authority to sponsor J visa holders from the U.S. Department of State) to facilitate the hiring of foreign teachers. These organizations also conduct the initial screening of foreign teacher applicants and once hired, help the foreign teacher secure their visa at the consulate abroad as well as help with the transition into the United States.  In return for hiring the teacher, the teacher is paid (although it is important to note that the school is not required to meet the Prevailing Wage, as in other types of visas) and gains skills and practical knowledge in the U.S. that they are able to take back to their country.  To encourage the teacher to return to their home country, the school district is often required to contract with the J sponsoring organization to NOT hire the teacher permanently by offering to assist them with obtaining Lawful Permanent Residence (Green Card) through employment. 

H-1B Visas:  A Better Option

In other instances, foreign teachers are hired and enter the United States using an H-1B visa.  The H-1B visa, a visa for specialty occupations that requires the beneficiary to have a Bachelor’s degree (or its equivalent) in the field in which they will be teaching, can be renewed for a period up to six years.  The teacher needs to be licensed in the district where s/he will teach or be eligible for the license.  Unlike the J-1 visa, the H-1B nonimmigrant status does not require the teacher to return to their home country if they have a valid means (employment or family based sponsorship) of obtaining their “Green Card.”   As a result the school district does not sign a contract with a third party agency limiting their ability to hire the foreign teacher permanently. 

Obstacles using the H-1B visa

Since the number of H-1B visas available each fiscal year is only 65,000, teacher recruiters face a problem year after year as they are competing with other companies such as high –tech companies who most often seek H-1B visa status for their employees. Since the Immigration Service’s fiscal year starts in October, with only 65,000 H-1B visas available every year, the visa numbers have historically been exhausted many months before the fiscal year begins.  In fact, the 2006-2007 H-1B visas were exhausted by May 26, 2001 approximately 7 weeks after they were made available.1  Moreover, the early exhaustion of H-1B visas presents a problem for teachers as classes for most schools begin in August or September. Thus, unless the applicant fell into one of the exceptions, there were no H-1B visas available for the majority of the 2006-2007 school year.  Since the next H-1B start date is October 1, 2007 employers may begin to apply for those numbers as early as six months before the intended start date, April 1, 2007. 
The unique problem that the H-1B issue presents to teacher recruiters is that it is possible that they may not have all of their teachers recruited by April 1 in order to have a start date of October 1.  Furthermore, since school begins in August or September, recruiters aim to have their classrooms staffed with full time teachers instead having to use long-term substitutes, if they can avoid it. Therefore, until Congress allocates more H-1B visa numbers, giving teacher recruiters a little more time to recruit foreign teachers before the visa numbers are exhausted, teacher recruiters may still find themselvesin a bind. 

POSSIBLE SOLUTION

A solution that is often overlooked for pursuing H-1B visas for teachers would be to examine the school district’s affiliation with an institution for higher education.  An exception to being to subject to the 65,000 visa numbers allocated each year would be if the sponsoring employer is a institute of higher education or related or an affiliated non-profit entity, a nonprofit research organizations, or a governmental research organizations.2  Incidentally, many schools, especially public school districts, have some kind of relationship with at least one local university.  That relationship most often is fostered through student teaching programs, but in some cases the school districts have specific curriculum programs offered at the local universities to assist teachers with satisfying state licensing requirements.  By exploring these relationships, recruiters of foreign teachers may be able to avoid the H-1B visa number cap of 65,000 resulting in their teachers being able to start work upon approval of the H-1B, instead of having to compete with other employers for limited H-1B visas or even having to wait for the next fiscal year.3
Having qualified teachers will help ensure that U.S. children obtain a quality education.  The availability of qualified math and science teachers will unquestionably enhance our children’s knowledge and interest in these areas, preparing future generations to compete in the job market and contribute to their communities.  International teachers enrich children’s educational lives and provide greater awareness of a global community and the world around them. 
The Oden and Dillard Group will continue to keep you informed as to the policies affecting employers and their responsibilities regarding their employees.  In the meantime, since all immigration matters are unique, we suggest that you contact an attorney experienced in immigration law to discuss your individual needs.

DISCLAIMER: The information provided here is of a general nature and may not apply to any specific or particular circumstances.  It is not to be construed as legal advice.


1 Despite the Fiscal year begins on October 1, and new employment can begin, applicants can begin applying for the H-1B visa nonimmigrant status beginning April 1, six months before the employment is scheduled to begin.
2 Other cap exempt circumstances include J-1 physician who has obtained a waiver thought the State 30 or federal program; Persons (up to 20,000) who possess a U.S. earned master’s or higher degree; a person who has already been counted against the cap and applied for another H-1B with another employer under portability provisions; spouse and children of H-1B; and, extensions of H-1B status.
3 Premium Processing of H-1B nonimmigrant status is available for an additional $1000.00 payable to the Department of Homeland Security thereby ensuring a decision on the petition within 15 calendar days.

Hiring J-1 Foreign Nationals: What are your Responsibilities?

It is still recruiting season for many Human Resource personnel who are still trying to staff "hard to fill" positions such as math, science and special education. Many Human Resources professionals have found that they have a better pool of applicants when they travel abroad to places such as the Philippines and India when trying to staff these positions. As a consequence, of the teacher shortage and the difficulty in staffing schools, many school districts hire foreign teachers and sponsor the J-1 visa for international teachers. Often, school districts find that this type of applicant is easier to pursue over the applicant seeking H-1B sponsorship since it appears to limit the responsibility of the school district to the individual teacher.
Many school districts use recruitment agencies to do their initial screenings and use J-1 sponsoring organizations designated by the Department of State, such as Visiting International Faculty or Institute of International Education to bring the teachers over to be placed in their schools. But once they arrive in the United States, whose responsibility are the teachers? While the schools may have worked closely with the recruitment agencies to ensure that the teachers have the proper qualifications to teach, and the visa sponsoring organization has screened their character and fitness and determined their ability to secure a visa from the U.S. consulate abroad, school districts are faced with teachers who, while they may be extremely educated and experienced, are as naïve in American culture as the students they teach.
During the J-1 visa process, the teacher is typically recruited by a recruitment agency who may either identify and refer teachers, meeting the school systems criteria who are seeking to teach in the United States or organize, possibly with a foreign counterpart, a teacher recruitment fair abroad. The teachers usually pay the recruitment agency (often, a substantial amount) to be able to attend the recruitment fair in their country. The U.S. School District's Human Resource (HR) recruiter will either conduct telephone interviews or go abroad and conduct interviews of the teachers during the teacher recruitment fair to see whether they are a good fit with their school. Should the HR recruiter decide to make an offer of employment to the foreign teacher, the teacher applicant will then be referred to the J-1 sponsoring agency, a designated sponsor by the Department of State, who is in the United States. The J-1 sponsoring agency will make sure that the teacher meets all of the prerequisites[1] for obtaining a J-1 visa for an international teacher, before preparing the supporting documents for the Certificate of Eligibility (Form DS-2019), the document which needs to be approved prior to the consulate issuing the visa. Once the visa is issued, the foreign teacher is now able to travel to the United States to report to the School System who offered them employment. But in the hiring of J-1 international teachers, there are several other things that need to be further considered.
Once the teacher has entered the United States, they may now be subject to the scrutiny of the school system and undergo their normal application procedure. While the school system, with the assistance of the U.S. recruitment agency, may have already scrutinized the teacher's teaching and academic credentials, new teachers typically go through other types of scrutiny before they are allowed into the classroom. First and foremost, teachers undergo an FBI fingerprint check, which will in most cases bring up any criminal charges or convictions that have occurred for an individual through out the U.S. The purpose of the FBI fingerprint and background check is to determine whether the teacher has been convicted of any crimes, particular any violent or sexual crimes that could later endanger the children they teach. If properly conducted, should issues later arise (such as), school districts would most likely not be held liable for any kind of negligent hiring.
While the FBI screening process is important, it fails to address whether the teacher to be hired has criminal records or other negative information in their background. Whose responsibility is it to check the background of the foreign national in their home country, or in any country in which they have resided since they were an adult? One would think that it would be the recruiting agency; however, this is not always the case. Some recruiting agencies limit their responsibility to recruiting foreign nationals who are qualified for the position, or those who will meet the scrutiny of most J-1 sponsoring agencies. But again, these agencies are primarily responsible for scrutinizing teachers for their academic and teaching experience, as well as character. However, they rely primarily on letters of recommendations and references as their source of information. They are not required to conduct their own individual (international) background check of the teachers. Therefore, U.S. School Districts should be aware that the FBI fingerprint and background checks that they conduct are somewhat limited in that they only track offenses an individual may have committed while in the United States. In the case of any offenses that a person may have committed in another country, there is no guarantee that this information will come up based on the assessment by the recruiting agency and/or the J-1 sponsoring agency. Therefore, prior to agreeing to use a particular recruitment agency, HR recruiters should ask the agency whether they conduct an international background check of the teachers they are bringing to the recruitment fair. This will ultimately ensure the School District that, along with steps that they will implement once the teacher arrivesin the U.S., proper steps have been taken to protect them from any issues that may arise in the future.

Once the teacher has undergone her U.S. and home country (at the minimum) background check, the teacher is now able to settle into her new temporary residence. But the teacher may have questions: Where do I live? How do I open a bank account? Where do I get my social security number? Do I need a car or can I take public transportation? These are real questions that are not necessarily easily or patiently answered by staff members who are not used to answering these types of questions when they normally work with U.S. citizens or permanent residents. To this end, if schools districts find themselves hiring a considerable number of foreign teachers (whether on a J-1 visa, H-1B visa or any other visa that allows foreign nationals to work for them), as a part of their normal "Welcome" packet, they should include information that may ordinarily appear to be unnecessary, but may be helpful to the many foreign nationals who may be entering the United States for the first time, not to mention, living and working here.

Teachers abroad are often used to dealing with a different kind of student than the U.S. student. Other than Germany, the United States raises children to be the most independent than any other nation. To this end, our students may not appear to be as appreciative of their teachers as students in other countries. Students in the United States are taught to ask questions, and not to learn by rote memorization. Students in the United States may not appear as polite or docile as students in other parts of the world and are certainly not as submissive. Thus, foreign teachers new to the United States may need to be educated about the U.S. student learner. They must be made aware of the laws dealing with misbehaving students and how to properly discipline them. In some countries, teachers may directly discipline students while in the classroom. Some of you may remember being disciplined in the classroom with teachers bearing rulers and other objects of discipline. Now, the U.S. laws do not tolerate such discipline and teachers and administrators are instructed to find other methods in disciplining unruly or uncontrollable students. This may not be the same in other countries. Thus, in order to assist the teacher to be successful in the classroom, the foreign teacher may need to be instructed on how to deal with our students, both in encouraging their positive qualities and controlling their negative ones.

As Human Resource personnel begin to enter the new teacher's information in the school's database, they often seek a social security number. For U.S. citizens and Permanent Residents, most of which we do is facilitated through the use of the social security number. Without this number, we are unable to get a driver's license, open a bank account, apply for a credit card, etc. Therefore, for the new teacher working in the United States for the first time, obtaining a social security number is paramount to being a legitimate worker. In some cases, the teacher will exit the airplane on one day and will be in the Human Resource personnel's office the next day. Once they have completed the initial paperwork, the teacher is usually sent immediately to the local Social Security office. In some cases, a quick referral to the Social Security office is not always the best move.

The Social Security Administration will issue a Social Security card to U.S. Citizens or lawful Permanent Residents or persons who are authorized to work. All requests for Social Security cards are now checked against the SAVE system, an electronic database that verifies an alien's status in the United States against the electronic records that are maintained by the immigration service. This prevents social security numbers from being issued to people who otherwise do not qualify. Because the foreign national's information must be sent from Customs and Border Patrol to the SAVE system, it can take up to 10 business days or longer following the foreign nationals entry into the United States for SAVE to be updated. Therefore, sending an employee to the Social Security office too early may result in unnecessary delays if the system has not yet been updated and the individual's status cannot be verified. Please keep in mind, however, that an individual can begin work for you while they are waiting to apply for their social security number. By simply indicating on form I-9 that the social security number has been applied for and all other work authorization documents and identity documents have been submitted, Human Resources is in full compliance with I-9 regulations.

Hiring foreign nationals to teach in our schools brings a value that cannot easily be replaced. The foreign national teachers not only bring experience in the content areas that the U.S. school systems fall short in, but they also bring culture and ideologies from their countries that broaden the perspectives of the students they teach and the colleagues they work with. Keeping this in mind, however, school systems must be diligent in making sure that the proper steps are taken during the recruitment process and that certain considerations are made for the teacher once they are hired and are now preparing to teach our students.

The Oden and Dillard Group will continue to keep you informed as to the policies affecting employers and their responsibilities regarding their employees. In the meantime, since all immigration matters are unique, we suggest that you contact an attorney experienced in immigration law to discuss your individual needs.

DISCLAIMER: The information provided here is of a general nature and may not apply to any specific or particular circumstances. It is not to be construed as legal advice.


[1] The typical prerequisites for foreign national teachers pursuing a J-1 visa are: Qualified to teach in primary or secondary schools in his/her country or nationality or last legal residence; Is of good reputation and character; Seeks entry to the United States for the purpose of full-time teaching at a primary or secondary education institution in the U.S.; and, Has a minimum of three years or teaching or related professional experience.