Dear Atty. Lou,
I work as a housekeeper for a family somewhere here in Southern California for more than ten years now. I am an overstaying visitor and I do not have a social security number but I was able to obtain a tax identification number from the Internal Revenue Service (IRS). My employers are deducting taxes and other SS payments from the bi-weekly pay checks. I have no problem with this and I know that everything is working well until my employer received a “No Match letter” from the Social Security Administration in 2008. My employer sought advice from their lawyer and they were told just to ignore this letter. I was never asked by my employer to explain the discrepancy in the numbers I submitted which actually is my tax identification number.
Recently, I read on the papers regarding the case of the Nicky Diaz Santillan, who is the housekeeper of Meg Whitman. My employers are not running for any public office but I am afraid that they will have problems with the no-match letter. Will I be reported to the immigration service about the inconsistency of my social security number? Please help me.
Pinay Diaz
Dear Pinay Diaz,
US employers are mandated by law to report wages paid to their employees and their contribution to the social security system. When reporting these wages on form W2, they indicate the social security number of the employees. The Social Security Administration then matches the individual names with the social security numbers they have on file. When there is an inconsistency between the name and the social security number, the SSA is not able to account for the individual’s contribution to the system.
There is an estimated $189 billion in the SSA which are unaccounted for. This means that there are thousands, if not millions, of contributions to the SSA by individuals who are not using accurate social security numbers.
In the past, the SSA sent letters to both the employer and the employee asking them to explain the discrepancy in the individual names and their social security numbers. These letters were called “no match” letters which actually scared a lot of employers and employees. Many employers were forced to terminate employees who are not able to explain the discrepancies. Also, in the past, employers risk incurring liabilities of hiring undocumented individuals simply by being put on notice about the illegal status of an individual through an unexplained “no match letter”. This rule was called the Safe Harbor Procedures for Employers Who Receive a No Match Letter dated August 15, 2007.
Several labor unions and advocacy groups contested the SSA policy resulting in the rescission of this 2007 No Match Rule. The 9th Circuit Court of Appeals has ruled that receipt of an SSA no-match letter about a worker is not “just cause” for firing the worker when the worker is covered by a collective bargaining agreement. An employer also lacks the legal grounds to fire workers who are named in the no-match letters. Receiving a notice from SSA that information submitted to it about a worker does not match its records does not mean that the employer is facing a penalty from the immigration service.
In your particular case, since you are an undocumented immigrant, the risk are always there but the “no match” letter you received should not be a reason for you to be fearful considering that they are not generally forwarded to the immigration service. However, if the attention of the Department of Homeland Security is called on your unlawful presence other than this letter, you should be ready to raise appropriate relief in court if you are put in proceedings. In the same way, your employer may also run the risk of hiring an undocumented immigrant if the DHS discovers this information otherwise. In the case of Meg Whitman, she is claiming innocence based on the unanswered “no match” letter because of the change of policy in 2009. However, the mere admission of her past undocumented employee is surely damaging to Meg Whitman especially on her candidacy for governor of the State of California.
Atty. Lou
Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
