Mismatched SSNs Could Pave New Path for Immigration Enforcement

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Laura D. Francis

The Social Security Administration soon will start sending “no-match” letters to employers when information submitted on tax forms doesn’t line up with SSA records, a practice that’s been dormant for six years.

Employers that don’t correct the information on the tax forms could be subject to Internal Revenue Service penalties.

Aside from the potential tax penalties, the letters have been viewed as evidence that a particular worker could be an undocumented immigrant who’s using someone else’s Social Security number in order to work.

Starting up the letters again could influence the behavior of employers and even some workers, Muzaffar Chishti, director of the Migration Policy Institute’s office at New York University School of Law, told Bloomberg Law Sept. 13.

Employers could change their hiring and employment verification practices, and undocumented workers could wind up going further into the shadow economy.

For the Trump administration, “these are examples of where the government has stopped enforcing immigration laws,” Chishti said. “They came into office with a list about where to look for lack of enforcement of immigration laws, and it’s not surprising that this was one of them.”

A representative for Immigration and Customs Enforcement Sept. 14 declined to comment on whether the letters would be used for immigration enforcement purposes.

“The Trump Administration is committed to ensuring a more efficient and effective government for all Americans,” White House Deputy Press Secretary Lindsay Walters said in a Sept. 14 email to Bloomberg Law. “This includes protecting Americans from identify theft, and ensuring illegal aliens are not taking advantage of the benefits of American workers.”

The SSA alerted employers in July that it was resuming the practice, and will start sending the letters in 2019, agency spokesman Darren Lutz said in a Sept. 13 email to Bloomberg Law. The letters “will request that the businesses and employers take steps to correct this information on our records, using our free online services, within 60 days,” he said.

Because of DACA?

The Obama administration “abruptly ended” the issuance of “no-match” letters in 2012, Immigration Reform Law Institute Executive Director Dale Wilcox told Bloomberg Law Sept. 12. “We were curious” as to how many mismatches there were during the period when employers weren’t being alerted, he said.

Following a Freedom of Information Act request and lawsuit, records obtained by the institute revealed 39 million instances of Social Security number mismatches between 2012 and 2016.

The IRLI is the legal arm of the Federation for American Immigration Reform, which advocates for lower immigration levels.

The organization believes that the decision to stop sending the letters was “because of the DACA program” and the fear that potentially rooting out stolen Social Security number usage was “likely scaring away” potential applicants, Wilcox said.

The Deferred Action for Childhood Arrivals program, launched in 2012, provides deportation protection and work permits to young, undocumented immigrants who came to the U.S. as children.

But at the time the Obama administration stopped the letters, they only were being sent to employees, not employers, Chishti said.

“My own feeling” is that the letters only would be a concern for potential DACA applicants if they exposed them to their employers, he said.

‘Physically Impossible’

It’s “physically impossible” for all 39 million mismatches to represent unauthorized immigrants working under stolen Social Security numbers, Chishti said. There are only just over 11 million undocumented immigrants in the country, and about 7 million are in the workforce, he said.

The suggestion that 39 million Social Security mismatches shows an epidemic of identity theft by unauthorized immigrants is “a classic case of hyperbole with not much supporting evidence,” he said.

In fact, it’s likely that the figure includes multiple reports of a mismatch involving the same Social Security number, Chishti said.

Not all of the mismatches necessarily correspond to undocumented immigrants who used someone else’s identity to work, Wilcox said. A portion represents clerical errors, name changes, and criminals who steal identities for other purposes, he said.

“We know a large portion of that number certainly is stolen identities,” Wilcox said.

But the SSA has “never notified the true owner of the Social Security number so that that individual can take steps to protect themselves,” Wilcox said. “This is not a victimless crime,” he said.

Enforcement or Credit?

Historically the letters weren’t to discourage employment of undocumented immigrants, but rather to give the opportunity to correct potential clerical errors that keep Social Security funds from being credited to the proper account, Chishti said.

In fact, the SSA was issuing letters even before the 1986 law that made it illegal to knowingly employ undocumented immigrants, he said.

More than $1.5 trillion was in the SSA’s earnings suspense file as of tax year 2016, the IRLI said. The file is where the agency puts Social Security funds that are contributed but can’t be matched with the SSA’s records.

The practice of sending no-match letters stopped and started at various points up until 2012, when the Obama administration stopped sending the letters entirely, Chishti said. Its reason was a lack of resources.

Still, “in all law enforcement, it is always about priorities,” he said. It wasn’t unreasonable to stop sending the letters, nor is it unreasonable for them to resume, he said.

Request Labor & Employment on Bloomberg Law