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Tuesday, May 28, 2019
The SSA explains that it's seeking to reconcile discrepancies between the names and Social Security Numbers (SSNs) it has on file with the names and SSNs that employers report. The purpose isn't to support enforcement of immigration law, but rather to "properly post employees' earnings to the correct record." That's an important distinction because if you confused such a letter with, for example, a "tentative non-confirmation" red flag coming from the US Department of Homeland Security's E-Verify system, you might unintentionally take an action that would get you into trouble.
In other words, you should NOT take any adverse action (for example, a suspension or termination) against any employees who provided inaccurate information. You may suspect the worker gave you someone else's SSN because he or she doesn't have a legitimate SSN, but taking the matter into your own hands could inadvertently could violate state and federal nondiscrimination laws.
The letter SSA is sending to many employers is nonthreatening, even humble, in tone. "There are a number of reasons why reported names and SSNs may not agree with our records, such as typographical errors, unreported name changes, and inaccurate or incomplete employer records," it explains. The letter also stresses that receiving the letter "does not imply that you or your employee intentionally gave the government wrong information… and does not address your employees' work authorization or immigration status."
The letter itself won't identify employees whose SSNs listed on their W-2s forms don't agree with SSA records. To get those details, you'll need to register on an SSA website known as Business Services Online (www.socialsecurity.gov/bso/bsowelcome.htm) and go to the "employer report status" page. If the discrepancy resulted from a clerical error on your part and you have a correct SSN on file from the employee you can fix that error on the portal by completing a W-2C form (a Corrected Wage and Tax Statement). You'll be asked to do that within 60 days of receiving the letter.
The SSA does offer some useful tips on what to do if you receive one of these letters.
Q: What should I do if my employee's name and SSN don't match IRS records?
A: Check to see if your information matches the SSN on the employee's SS card. If it doesn't match, ask your employee to provide you with the exact information as it is shown on the employee's social security card.
Q: What if the information I have provided on the employee's W-2 matches the information on the employee's Social Security card?
A: Ask your employee to check with any local social security office to resolve the issue or call 1-800-772-1213.
Q: How can employees change or correct their names on their SSN cards?
A: An employee who legally changed his or her name due to marriage, divorce, court order, or any other reason, must tell the SSA so a corrected card can be issued.
The SSA posed a question likely to be on the minds of employers who received a no-match letter ... "Will I get penalized by the IRS for having an incorrect SSN on a Form W-2?"
The answer, which may seem unsatisfactory, was that "the IRS is responsible for any penalties associated with the Form W-2." (You can learn more about the rules the IRS applies by checking IIRS Publication 1586.)
Going forward, the SSA is encouraging employers to take advantage of its free SSN Verification Service to reduce the chances of a no-match in the future. It's available through the SSA's Business Service Online web portal.
The SSA doesn't have the legal authority to compel you to do anything in response to a no-match letter. However, the Agency that does have enforcement teeth — the US Department of Homeland Security's Immigration and Customs Enforcement agency (ICE) — may take note if you fail to respond to the SSA and may conduct an I-9 audit. Following up on a no-match letter from SSA could demonstrate to ICE examiners that you have acted in “good faith” and serve as a basis for mitigation in the event of any penalties.
You can show further evidence of “good faith” by checking with employees who need to get in-touch with the SSA to resolve any discrepancies, to see if the matter was resolved.
With any luck, discrepancies will just be the consequence of an innocent clerical error. If not and the discrepancy cannot be resolved, it might be prudent to seek The advice of competent US immigration law counsel.
National in scope, the business immigration law firm of NPZ Law Group represents clients from throughout the United States and around world. Regionally, our attorneys remain committed to serving the immigration needs of businesses in the Tri-state area and the Hudson Valley, including residents of Ridgewood, Newark, and Jersey City, Burlington County, Bergen County, Camden County, Cumberland County, Essex County, Hudson County, Mercer County, Middlesex County, Monmouth County, Morris County, Passaic County, Salem County, Union County, northern New Jersey, southern New Jersey, central New Jersey, NJ; New York City, Rockland County, Orange County, Westchester County, Kings County, Sullivan County, Ulster County, New York, NY; Chicago, Illinois, IL; and Toronto and Montreal, Canada. Our nationwide practice focused on quality legal representation and personal service.
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