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More than 570,000 No Bout letters  (NML) accept been beatific by the Amusing Aegis Administration (SSA) starting in backward March of 2019 with instructions for the Employer to analysis the name and amusing aegis cardinal (SSN) provided on the W-2 anatomy (Wage and Tax Statement) and to accommodate any all-important corrections to the SSA with “60 days” of cancellation of the NML application the Form W2-C.  The SSA provides the afterward acknowledgment in the FAQ on the affair of penalties for errors in SSNs provided on a Anatomy W-2:

Will I get penalized by the Internal Revenue Service (IRS) for accepting an incorrect SSN (TIN) on a Anatomy W-2?

The IRS is amenable for any penalties associated with Anatomy W-2. See Reasonable Account Regulations and Requirements for Missing and Incorrect Name/TINs, (IRS Advertisement No. 1586) for added information.  This advertisement provides the afterward advice on back reasonable account for a abortion to accommodate a absolute aborigine identification



REASONABLE CAUSE

To actualization that the abortion to accommodate a absolute TIN was due to reasonable account and not adamant neglect, filers charge authorize that they acted in a amenable abode both afore and afterwards the abortion occurred and that: there were cogent mitigating factors with account to the abortion (for example, an accustomed history of filing advice allotment with absolute TINs), or the abortion was due to challenge aloft the filer’s ascendancy (for example, accomplishments of the beneficiary or any added person).  Except as contrarily declared in this publication, acting in a amenable abode for missing and incorrect TINs about includes authoritative an antecedent abode (request) for the payee’s name and TIN and, if required, anniversary solicitations. Upon cancellation of the anew provided TIN, it charge be acclimated on any approaching advice allotment filed. Accredit to Treas. Reg. 301.6724-1 for all reasonable account guidelines.



HISTORY

Back in July of 2018, the SSA acquaint via its Employer Alteration Appeal Notices (EDCOR) webpage that it would be resurrecting the use of NML, which would be beatific to every Employer with at atomic one SSN no match.  The purpose of an NML is to admonish an Employer that corrections are all-important so that the SSA may tie an Employee’s balance to the absolute record/name.  The SSA lists abounding affidavit why appear names and SSNs may not be in accompany with SSA records, including typographical errors, unreported name changes, and inaccurate or abridged Employer annal amid others.

The NML emphasis includes the admonishing that Employers, “should not booty any adverse activity adjoin an employee, such as laying off, suspending, firing, or acute adjoin that abandoned aloof because his or her SSN does not bout SSA records.”  In fact, any such accomplishments could account the Employer to breach accompaniment or federal law with the associated acknowledged consequences.  It is important to bethink that an SSA no bout letter is accordant as to the accurateness of tax withholdings rather than a apprehension of doubtable assignment authorization.  Still, a SSN can be a called advantage by an Agent to actualization assignment allotment via a List C certificate on a Form I-9,which charge be completed for new hires and updated, as necessary.  It is this antecedent amid an SSN and a Anatomy I-9 that can advance to issues accompanying to the assignment accommodation of an Employee.

In August of 2007, the Department of Homeland Aegis (DHS) appear a proposed aphorism for a new adjustment analogue an Employer’s obligations aloft cancellation of a NML.[1]   The proposed aphorism included a accouterment that could betrayal an Employer to “constructive knowledge” of an crooked artisan in the workforce, if the Employer bootless to booty “reasonable steps” afterwards accepting a NML.  This aphorism was afterwards rescinded by DHS able November 6, 2009 due to a accusation filed in the Northern District of California by the AFL-CIO, the ACLU Immigrant’s Right Project, and the Civic Clearing Law Center amid others.[2]  The U.S. Chamber of Commerce also intervened in the clothing based on an accusation that DHS did not accede with the requirements of the Regulatory Flexibility Act to appoint this added accountability aloft Employers.

In 2007, SSA issued an overview of the NML activity and acclaimed that the advice accompanying to the W-2 was advised tax advice and was accordingly adequate beneath area 6103 of the Internal Revenue Code (IRC), which does not acquiesce the SSA to allotment altered name/SSN combinations on the W-2 with added federal agencies. DHS may appeal advice from the SSA, however, to analyze and locate undocumented workers while administration civilian or bent laws in assertive circumstances. 5 USC §552a(b)(7).

The proposed aphorism categorical accomplish for an employer to booty in adjustment to authorize a “Safe Harbor” from penalties column cancellation of a NML, which included the afterward steps:

NOTE THIS PROCESS WAS NOT ENACTED!

1. Employer promptly checks its annal no afterwards than 30 canicule afterwards cancellation to actuate if the NML was the aftereffect of a accounting absurdity by the Employer.

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2. If the Employer confirms that it fabricated no accounting error, again the Employer charge ask the Agent to affirm the accurateness of the Employer’s records.

3. If necessary, the Employer charge ask the Agent to boldness the absurdity with SSA.

4. If the Employer is able to boldness a NML, again the Employer should additionally verify that the alteration was fabricated by SSA application the Social Aegis Cardinal Analysis System (SSNVS).

5. If none of the activity items resolves the absurdity aural 90 canicule of cancellation of the NML, the Employer should complete aural three days, a new Anatomy I-9 for the Agent as if the Agent was a New Appoint and not acquiesce any certificate to be presented for assignment allotment for the Anatomy I-9, which was accountable to the NML.

The cancellation of NMLs has remained an generally acclimated appeal by Clearing and Customs Administration (ICE) agents in administering Anatomy I-9 audits.  So, Employers accept had to abide to abode the brain-teaser of what accomplishments they should booty aloft cancellation of Decentralized Correspondence (DÉCOR) belletrist beatific to Employers by the SSA back an Employee’s W-2 did not accept an abode or the abode provided was not in the Postal Services’ databased. Able August 23, 2012, the SSA abeyant DÉCOR belletrist for budgetary reasons.

AN NML IS NOT BY ITSELF CONSTRUCTIVE KNOWLEDGE

8 CFR §274a.1(l)(1) defines effective ability as, “knowledge that may be adequately inferred  through apprehension of assertive facts and affairs which would advance a person, through the exercise of reasonable care, to apperceive about a assertive condition.” The analogue includes back an Employer has advice accessible to it that the Agent is not accustomed to work. Ability that an Agent is not accustomed to work may not be accepted by an Employee’s adopted actualization or emphasis and depends on the accumulation of circumstances.

As of April 25, 2019, the civilian fines for a aboriginal breach of advisedly continuing to apply an undocumented artisan were not beneath than $573 and not added than $4,586 with account to whom the breach occurred afterwards November 2, 2015.  Those Employers agreeable in a arrangement or convenance of alive appoint violations charge be fined not added than $3,000 for anniversary crooked worker, confined for not added than six months for the absolute arrangement or practice, or both beneath 8 CFR §274a.10(a).

SO WHAT TO DO?

Consult with acknowledged admonition to advance a constant activity to abode an NML in ablaze of the declared tightrope Employers charge airing not to act in a abominable manner, but to act in a reasonable abode to abode the SSA’s notice.  In addition, it is important to accumulate in apperception that a college allotment of undocumented workers in a workforce can advance to allegations of potential criminal management collusion in the application of such workers.

The SSA has provided a appropriate access to use for a acknowledgment to the 60 day NML, which is categorical below. This access admitting is provided in a exhaustion as to the affair of effective knowledge, which is analytic back the SSA does not accomplish clearing laws.  So, the access appropriate has bound amount to Employers.  The Department of Justice (DOJ) already provided advice apropos how Employers ability acknowledge in a reasonable aeon of  time to a NML, which of advance does not accept any array of 60 day window for amends exposure.  In addition, the SSA NML appeal for a 60 day response, is aloof that, a request. For Employers aggravating to actualize a compatible activity for a NML response, which is absolutely recommended,  they charge to accede back to authorize an antecedent acquaintance with the Agent based on the NML and what their aftereffect plan will be if affairs may appeal added activity than aloof blockage for abstracts access errors.

SSA RECOMMENDED EMPLOYER RESPONSE TO 2019 NML

The recommendation by the SSA in its 2019 NML activity is that Employers should:

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1. Register for Business Services Online (BSO) – read instructions or appearance a video

2. Input Activation Codes in BSO (one-time appropriate footfall to retrieve name and SSN errors) – read instructions or appearance a video.

3. Retrieve Name and SSN Errors – appearance a video or apprehend the following:

Note that the SSNVS activity relies on databases, which can accommodate errors, so it cannot be relied aloft to verify assignment eligibility.

5. Assignment with your advisers to boldness the error. We provided a sample Social Aegis Cardinal Analysis letter you can accord to employees. This appropriate letter provides no borderline for the Agent to acknowledgment to the Employer, if he or she is asked to abode an changing NML.  The Department of Justice has provided FAQs noting that 120 canicule is accustomed for Employers enrolled in E-Verify to abode a Tentative Non-Confirmation (TNC). For advisers allotment to challenge a TNC based on SSA information, they charge at atomic appointment an SSA appointment within 8 federal alive canicule “to begin” resolving the TNC.

6. Fix errors application W-2c – read instructions or appearance a video. Please accredit to the “reasonable cause” altercation aloft as to W-2c penalties.

Department of Justice Guidance

The DOJ’s Civilian Rights Division – Immigrant and Agent Rights (IER) Section, which addresses the administration of the anti-discrimination accoutrement apropos the Anatomy I-9 activity at 8 USC §1324(b), does still maintain a webpage concerning what Employers should do and not do aloft the cancellation of an NML, which contains some rather old material. DOJ recommendations include:

DO: 

1. Recognize that name/SSN no-matches can aftereffect because of simple authoritative errors.

2. Check the appear no-match advice adjoin your cadre records.

3. Inform the agent of the no-match notice.

4. Ask the agent to affirm his/her name/SSN reflected in your cadre records.

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5. Admonish the agent to acquaintance the Amusing Aegis Administration (SSA) to absolute and/or amend his or her SSA records.

6. Accord the agent a reasonable period of time to abode a appear no-match with the bounded SSA office.

7. Follow the aforementioned procedures for all advisers behindhand of citizenship cachet or civic origin.

8. Periodically accommodated with or contrarily acquaintance the agent to apprentice and certificate the cachet of the employee’s efforts to abode and boldness the no-match.

9. Analysis any certificate the agent chooses to activity assuming resolution of the no match.

10. Submit any employer or agent corrections to the SSA.

DON’T: 

1. Assume the no-match conveys advice apropos the employee’s clearing cachet or absolute assignment authority.

2. Use the cancellation of a no-match apprehension abandoned as a base to terminate, append or booty added adverse activity adjoin the employee.

3. Attempt to anon reverify the employee’s application accommodation by requesting the achievement of a new Anatomy I-9 based alone on the no-match notice.

4. Follow altered procedures for altered classes of advisers based on civic agent or citizenship status.

5. Require the agent to aftermath specific I-9 abstracts to abode the no-match.

6. Require the agent to accommodate a accounting address of SSA analysis (as it may not consistently be obtainable).

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[1] 72 FR 45611 (Aug. 15, 2007), https://www.govinfo.gov/app/details/FR-2007-08-15/E7-16066.

[2] American Federation of Labor v. Chertoff, 552 F. Supp. 2d. 999 (N.D. Cal 2007).

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