Mid-Year Immigration Update—Important Changes Impacting Your Employees

The government’s interpretation  and enforcement of this country’s immigration laws and regulations continue to change at a dizzying speed, leaving many employers scrambling to keep their foreign national employees in status and able to continue working for them. This is the first in a series of updates on  some of  these important changes.

Collecting Social Media Identifiers from Visa Applicants

Foreign nationals who apply for immigrant and nonimmigrant visas, including work visas, are now required to provide their social media identifiers to the Department of State (DOS) when applying for a visa.  The DOS explains that collecting this additional information will assist the government in vetting applicants and confirming their identities.

 This new interest in the social media posts of visa applicants has resulted in many foreign nationals taking a critical look at their present and past posts to see if any of those posts could provide grounds for the U.S. denying them a visa.  In some cases, foreign nationals are abandoning or at least curtailing their social media presence in light of this new initiative.

The New Wave of Social Security Mismatch Letters

Beginning in March of 2019, the Social Security Administration (“SSA”) once again began issuing “no match” letters to employers having at least one name and Social Security Number (“SS#”) submitted on wage and tax statements that do not match the SSA’s records.  Receipt of such a letter does not by itself establish that the employee in question is an undocumented worker or that he/she is using a fake social security number.  Indeed, the letter from the SSA specifically states that employers should not take adverse action against any employee based solely on the mismatch letter.

Companies receiving mismatch letters should consider checking their records with the employees listed in the letter to ensure that the company recorded the correct  social security number on the wage and tax statements. If that does not resolve the issue, the company should direct any employees with an open case to the SSA office to resolve the issue, as it is possible that someone else is misusing the employee’s social security number. If the employee returns with an entirely new social security number, companies should consult with counsel about next steps, as some state laws limit what action an employer can take is this circumstance.

Any time a company receives a mismatch letter, employers ought to contemplate a Form I-9 audit to ensure that they are in good order and make any updates or amendments that are appropriate.  When Immigration and Customs Enforcement conducts an I-9 audit, they will typically ask to see prior mismatch letters and will want to know what the Company did with those letters once received. Therefore, employers should consider promptly addressing the mismatch issue and keep a record of the steps taken.

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