“What do we do when the Social Security number comes back a no-match?” and “We're considering employing an H1-B [visa] employee."
Employers are responsible for providing information regarding the work and immigration status of their workers by submitting an I-9, The Employment Eligibility Verification Form. This form is typically submitted at the time of hire and it must be completed and returned within three business days of the employee’s start date. When completing this form, it is the employer’s responsibility to review employee’s documentation proving their eligibility to work in the US. A list of acceptable documents can be found on the back of the I-9 form and employers must ensure that the documents are genuine and that they clearly relate to the staff member being hired.
After submitting the I-9 form, if any discrepancies are found, such as inaccurate social security numbers or any other details which do not match those held on government records, an employer may receive a ‘no match’ letter. This letter will request that the employer submits further information and clarification to amend any inaccuracies. In many cases, mistakes can occur due to missing information, spelling or grammatical errors; therefore, it does not suggest that the employer or employee willfully attempted to mislead the Social Security Administration. Often, you will receive a letter specifying which errors have occurred, including the type of evidence or additional information required. Should a company receive a ‘no match’ letter, it is not reasonable to terminate an employee based on this. Instead, employers must follow the instructions, submit new documents, and clearly document the steps they took to resolve the issues. Employers should also allow a reasonable amount of time for the staff member to provide additional information, to make the corrections, and should follow up with their employee. Employers can also request that their employees provide evidence that they have resolved the inaccuracy. Although employers cannot take any adverse action based on the receipt of the ‘no match’ letter, if they later find out that an employee intentionally misrepresented themselves, including failing to have appropriate work permits, then an employee may arrange for the their termination.
Some organizations may consider hiring a staff member on an H1-B visa which is also known as a guest worker visa. These are typically temporary visas which enable workers from foreign countries to work in the US for up to three years under a non-immigrant visa. Organizations often use these to employ highly skilled workers who are part of specialty occupations. There are specific criteria which the worker must meet in order to be eligible to receive this type of visa and for an organization to sponsor a worker including minimum qualification. There is also a quota, meaning only a certain number of visas can be issued per year and organizations must prove that there is no US based worker who is suitable for the role. Employers should therefore be willing and able to make a strong case for hiring a foreign employee for a particular role. For organizations which are interested this process, the first step is to submit a Labor Condition Application with the Department of Labor before submitting a H-1B petition.