FELS has learned from members that some employers are sporadically receiving notification from either the Social Security Administration (SSA) or the Internal Revenue Service (IRS) that name and Social Security number combinations submitted for payroll tax purposes do not match information in SSA databases. Rumors abound that the federal Social Security Administration (SSA) may resume their use of “no-match” letters soon (see, “Reviving No-Match Letters” by George Fishman of the immigration restrictionist think tank Center for Immigration Studies, and “The Approaching Social Security No-Match Flood” by Chris Thomas of the nationally-prominent law firm Holland & Hart). 

Before their most recent discontinuance at the outset of the Biden Administration in 2021, a no-match letter asked the employer to provide correct SSN and name combinations to SSA within 60 days. Specifically, the letter asks the employer to “review the name and SSN information you submitted on the Form W-2 and provide us necessary corrections on the Form W-2C within 60 days of receipt of this letter.” It also asks that the employer use the Employer Report Status in an online facility on SSA’s website called Business Services Online (BSO) to identify name and SSN combinations that do not match SSA records.

The latter request stems from the fact that unlike past SSA no-match letters, these letters did not identify the employees whose information does not match SSA’s records. The Employer Report Status page permits an employer to check name and SSN combinations for one employee at a time.

In the case of one employer who contacted FELS before the 2021 no-match letter suspension, SSA’s letter indicated SSA had processed more than 1,600 Forms W-2 submitted by the employer, of which more than 750 contained information that did not match SSA’s records.

Should SSA or IRS resume large-scale efforts to have employers affirm SSN/name matches in payroll reporting, FELS suggests agricultural employers keep four things in mind when assessing options:

1. An employer should not ignore the implication arising from knowledge that the name and SSN provided by an employee do not match SSA’s records—at least where the employee presented a Social Security card bearing that name and SSN to prove employment authorization during the U.S. Citizenship and Immigration Services Form I-9 employment eligibility verification process: that the employee might have offered bogus information to the employer when hired. The fact that SSA is now informing you this name and SSN combination does not match its records might indicate a problem with the employee’s claim of employment eligibility.
2. Do not assume a no-match indicates an employee is not employment eligible and that you are employing that person in violation of federal law, which forbids employers from continuing to employ persons knowing they are not employment eligible. Various typographical and reporting errors, for example, can cause a no-match.
3. It is unknown what, if any, response federal agencies may have for employers who do not respond to no-match letters or do not respond as requested by SSA, what response other agencies such as IRS might have, or whether information about no-matches may come into the possession of Immigration and Customs Enforcement (ICE).
4. Should large-scale no-match outreach resume, FELS and other employer-assisting entities have in the past suggested employers coping with past no-match situations give to affected employees letters directing them to resolve the situation with SSA, as an employer cannot resolve a no-match for an employee. However, an employer directing an employee to resolve a discrepancy (and the employee cannot resolve it because the employee lacks employment eligibility) could face a situation where the employer’s knowledge of the employee’s inability to do so might constitute constructive knowledge of the employee’s lack of legal status if a card containing the discrepant SSN was used as a List C document to demonstrate employment eligibility on that employee’s Form I-9.

You are not required, either by the new SSA no-match letters or elsewhere in federal law, to access BSO or SSA’s Social Security Number Verification System to learn the identities of employees whose names and SSNs don’t match SSA’s records. If you have received the SSA letter, however, you should as noted above not ignore its implication: that affected employees might have provided you with fraudulent SSN/name combinations when hired.

If you have a fairly small number of employees, you might elect to simply verify that SSN/name combinations provided to you by employees were accurately reported to SSA on employees’ IRS Forms W-2, correct any errors on those forms by filing corrections using a Form W-2C, and respond to SSA’s no-match letter describing those actions.

But if you have a fairly large number of employees, doing this might be very time consuming. In that case, you might decide to use the BSO system, which will allow you to learn which employees have discrepant name/SSN combinations according to SSA’s data. Once you learn the identities of employees whose names/SSN combinations do not match SSA’s records, you can verify that the information you reported for those employees matches what they provided you with at the time of hire.

FELS has in the past noted that employers might want to consider using this process for dealing with no-matches, which is based on a rule issued and later rescinded by the U.S. Department of Homeland Security that provided steps an employer could follow upon receiving a no-match letter:

1. Check your records to see if the no-match was due to your recordkeeping error. If so, correct the error, and inform SSA of the correct information.
2. If you determine the no-match was not due to a recordkeeping error, promptly ask the employee to confirm that the name and SSN in your records are correct. If the employee says they are incorrect, do the things specified in Step 1 to correct recordkeeping errors.
3. If the employee says the name and SSN in your records are correct, promptly ask the employee to resolve the issue with SSA, giving the employee 90 to 120 days to resolve the situation.
4. If the employee has failed to provide information indicating a resolution of the no-match within 90 to 120 days, the employer might not need to take further action, particularly if the affected employee was a seasonal employee no longer employed by the employer. If the employee is no longer employed, both the initial letter and the second letter should be sent to the employee’s last known address.
5. If the discrepant SSN/name combination appears in a Social Security card used by the employee to demonstrate employment eligibility on the employee’s Form I-9 (as opposed to the employee having used, for example, a List A “Green Card” to demonstrate both identity and eligibility), complete a new Form I-9 for the employee as if the employee were newly hired. Of course, the employee may not use a Social Security card displaying the discrepant SSN to establish employment authorization. To establish identity or both identity and employment authorization, the employee must show a document that contains the employee’s photograph. Keep the new Form I-9 with the employee’s prior Form(s) I-9.

The most common question FELS has received about this situation is simply, “what should I do?”

Unfortunately, there is no simple or clear-cut answer, and the answer will depend on each employer’s individual situation. FELS is not a law firm, and we cannot furnish legal advice to our readers. We can, however, provide legal information about our understanding of the requirements of the law. FELS members wanting legal advice in such a situation can access it through the FELS Group Legal Services program.

If you have questions or concerns, please contact FELS at 800-753-9073 or fels@fels.net.