A recent New York Times article reported that tens of thousands of employers are expected to receive “no-match” notifications from the Social Security Administration, a move that could cause massive disruptions in hospitality, construction and agriculture workforces.
The notifications are the first to be sent since 2012. The practice received increased scrutiny in 2007, when President George W. Bush’s administration issued a “no-match rule,” stating the letter was sufficient notification to an employer that an employee was not eligible to work in the U.S. The practice was effectively stopped in 2009, when then-Department of Homeland Security Secretary Janet Napolitano announced the Obama administration would not continue with the controversial practice.
Although a “no-match” notice could mean an employee is working in the United States illegally, it can also be the result of improperly filing W-2 information with the Social Security Administration. If you receive a no-match notice, don’t panic. Unlike previous iterations of the no-match notices, the current notifications do not threaten employers with penalties or enforcement.
Maintaining I-9 Compliance
With that being said, the notice should be taken as an opportunity to assess of your I-9 compliance practice and ensure that you are ready should an I-9 audit take place. If anything these notices are a hint that this administration is serious about enforcement and that such workplace enforcement is high on the radar. For information on how to plan for an I-9 Compliance Audit, download our free guide.
First, make sure your I-9 forms are properly submitted. We recommend taking the following steps:
- Conduct an internal audit to assess the current state of your I-9 program compliance.
- If your audit reveals good compliance, implement a policy for annual internal audits of your files and annual training of existing and new I-9 preparers at your organization.
- If your audit reveals inadequacies in I-9 compliance, take immediate steps to improve and correct the existing I-9s. Many technical errors can be corrected and these corrective steps can lower exposure to fines and penalties.
- If you do decide to undertake corrective steps, you must be sure that the corrections are done properly and do not compound existing errors. It may be wise to engage legal counsel to make sure corrections are done properly.
- If your company decides to re-haul its I-9 program, engaging qualified counsel to provide clear training and proper policies and procedures can help to ensure good compliance into the future.
Form I-9 Checklist
To help with your internal audit, we have compiled the following checklist that looks specifically at Form I-9:
Form I-9, Section 1
___ Does name match the name in the personnel files and on the INS documents?
___ Is the address, DOB and Social Security Filled out completely?
___ If the employee has no social security number yet, is the box marked “None” – ie no Tax I.D. number or internal temporary number allowed.
___ Is the attestation with the three boxes to check filled out completely by the employee?
___ Did the employee sign and date?
___ Is the Preparer/Translator’s Certification filled out and signed if someone assisted the employee in filling out Section I?Section 2
Form I-9, Section 2
___ Has the employer examined one document from List A OR one document from List B AND one document from List C? It is superfluous to examine one from List A and one from List B or C, since List A alone is sufficient. It is likewise incorrect to examine only one document from List B or C. However, the document MUST BE a true List A, B or C document and you cannot say “SEE ATTACHED COPY”.
___ If the List C document presented was a Social Security Card, did it contain either the Notation: “NOT VALID FOR EMPLOYMENT” or “VALID ONLY WITH INS AUTHORIZATION”, it is NOT a valid List C document. If it says “NOT VALID FOR EMPLOYMENT” it is completely unacceptable. If it says “VALID ONLY WITH INS AUTHORIZATION” then the person responsible for I-9 verification can ask for another INS-issued employment authorization document such as the I-797 H1B approval notice – without committing document abuse.
___ If a List A document was presented, have all of the relevant spaces been filled. Note: the most common List A document for aliens authorized to work is to present an unexpired foreign passport with an I-94. There are two spaces under List A – one for the passport info and one for the I-94 information. Both must be filled in. Also, the H1B and L-1 statuses are employer-specific. It is NOT sufficient to accept an I-94 stamped H1B or L1B unless you know that the sponsor of that status was XXXXXXXXXX except in the case of H1B portability (See Below).
___ Is the Employer Certification filled out completely and signed, including name, title and company name & date?
Form I-9, Section 3
___ Was the I-9 re-verified on or before the date the work authorization expired?
Note: The “90-day rule” for acceptance of receipts in lieu of missing, lost or expired documents only applies to individuals who are already work-authorized, though the Handbook is not clear about this. Thus an alien who is applying for his or her initial INS Employment Authorization Document (EAD), would not come within the 90-day rule, while an alien applying for a replacement EAD would come within the rule. Likewise, an alien applying for extension of H1B or L1B status would come under the rule, while an alien applying for initial H1B or L1B status would not, except in the case of H1B portability.
Note: Although it is counterintuitive, the employer may not require the employee to produce any specific INS-issued document when reverifying employment eligibility, just as at the time of original hire. So if initially the employee presented a List A document, at reverification he can present one from B and one from C and the employer must accept them if they are valid documents (See #7 above).
___ Has the final attestation been signed and dated?
___ Was the I-9 completed within 3 days of hire?
Receiving a No Match notification, or any correspondence regarding your I-9 compliance can be unsettling. Contact us if you have questions or if you need help creating a compliance protocol for your company.