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Sep 17, 2019

Social Security Administration (SSA) Programs Present Challenges to Employers Which Rely Upon Unauthorized Workers

David Spaulding

When we talk about immigration enforcement, we are usually talking about the three “sister” agencies: United States Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE).  We may not easily see the role that agencies like the Social Security Administration (SSA) play in immigration enforcement; yet, the Trump Administration is enforcing a wide field of laws in ways that will likely impact potentially undocumented immigrants and, by extension, their employers.

Back in April, Jonathan Grode explored the impact of Social Security Administration (SSA) Request for Employer Information, colloquially known as “no-match letters” (“No Match Letters”), on employers.  Therein, Jonathan noted that the No Match Letters fit within a broader Trump Administration “strategy of increased visibility and enforcement.”  The No Match Letters place pressure on employers of potentially unauthorized workers, “promoting internal compliance” within companies and making it harder for potentially undocumented foreign nationals to work in the United States. 

Businesses which employ unauthorized workers sometimes get their first hint of a problem with their workforce from the No Match Letters.  The first indication of trouble may not come from there in the future though since the SSA is implementing the Electronic Consent Based Social Security Number Verification (eCBSV) Service (“ECBSV”), pursuant to the 2018 Economic Growth, Regulatory Relief, and Consumer Protection Act, Public Law (PL)115-174.  The ECBSV rollout of the first ten private companies which will use it (and fund it) presents a substantial challenge for businesses which struggle to find authorized workers.

The ECBSV lets enrolled companies determine creditability through biographic data and SSN provided to potential creditors.  (Symantec is one of those companies and has been actively publishing their participation.)  As a practical matter, implementation cuts those whose SSNs do not match their biographic identity in creditor’s records off from obtaining credit.  As applied, it could have dramatic effects on banking and associated services in the US. 

This is a threat that should be assessed with the assistance of counsel, with whom the company has an attorney-client privilege.  Of issue is that the ECBSV may make it difficult to pay unauthorized workers through the common mechanisms that regulating agencies expect (direct deposit and paychecks).  Since one of the factors which features heavily in the ICE Form I-9, Employment Eligibility Verification audits we have been discussing (“I-9 Audits”) is “[l]ists of any individuals who have worked for the business during the last three (3) years who are not on the employee list, the independent contractor list, or temporary employees list,” undocumented work compensation represents a serious risk to company, principals, managers, and supervisors.

The Trump Administration’s net is tightening around undocumented immigrants.  There are I-9 Audits, No Match Letters, ECBSV, and the government’s E-Verify program, a web-based system which “compares information entered by an employer from an employee’s Form I-9, Employment Eligibility Verification, to records available to the U.S. Department of Homeland Security and the [SSA] to confirm employment eligibility.” We also have immigration raids and both a 2018 and 2019 surge in ICE worksite enforcement investigations and prosecutions of document vendors.  For employers which have not assessed their liability or properly documented their workforces, the risks of employing unauthorized workers have been considerably ramped up over the last eighteen months.

Knowing what the risks are and assessing liability is something vulnerable businesses should do before regulatory actions are taken.  Please contact us over here at Green and Spiegel if we can help you assess your liabilities and explore ways of coming into compliance before ICE begins its next enforcement year on October 1st.

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