Featured Article - Social Security and Immigration Law: A Tight Spot
It is well-documented that New Jersey is host to large numbers of unauthorized aliens. Many establishments unknowingly hire and retain undocumented workers because they are legally obligated to accept fraudulent documents if they appear valid on their face. However, an employer faces civil and criminal liability under the Immigration Reform and Control Act (IRCA) if it continues to employ an individual, even if he had been lawfully hired, when an employer knows, or should know, that he is or has become an unauthorized alien.
There are times when an undocumented worker discloses his unauthorized status to an employer or the employer uncovers evidence of document fraud. Under these circumstances, the employees' continued employment would violate IRCA. Recently, the Social Security Administration (SSA) has been issuing letters to employers informing them that some employee names and/or social security numbers do not agree with SSA's records. However, "no match" letters state that they do not imply that the employee intentionally provided incorrect information. Further, the letter informs the employer that they cannot take adverse action against the employee. In fact, the letter states that "any employer that uses the information in this letter to justify taking adverse action against an employee may violate state or federal law and would be subject to legal consequences." Clearly, by receiving this letter, the employer is not on notice that an employee is an authorized alien.
On the other hand, the employer must instruct the employee to obtain a proper social security number from the SSA. In this regard, the employer must be mindful of IRCA. While the SSA no-match letter standing alone does not itself put the employer on notice of an employee's unauthorized status, there are situations in which the SSA letter would cause or contribute to a determination that the employer has been put on notice. For example, an employer may receive information from other sources, such as a tip from another employee, indicating that an employee is unauthorized. Taken together, the employee may be on sufficient notice that the employee is unauthorized and, therefore, his continued employment would violate IRCA.
Additionally, an employer should not ignore the consequences of the follow-up activity it should perform in response to the no-match letter. For example, if an employee has been given the opportunity to explain and reconcile a reported discrepancy with SSA records, and has failed to do so satisfactorily, the employer must take care not to violate IRCA. The Immigration and Naturalization Service would be much more likely to find a violation of IRCA if the employer continues employment without taking appropriate steps to reverify work authorization, and the employee is in fact unauthorized.
