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DHS Issues Final Rule on Employer ‘No-Match’ Obligations; Judge Issues Temporary Restraining Order Until October 1


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U.S. Immigration and Customs Enforcement (ICE), an agency of the Department of Homeland Security (DHS), issued a final rule, effective September 14, 2007, that amends the regulations relating to the unlawful hiring or continued employment of unauthorized workers. The amended regulation describes the legal obligations of an employer, under current immigration law, when the employer receives a no-match letter from the Social Security Administration (SSA) or receives a letter regarding employment verification forms from the DHS. It also describes “safe-harbor” procedures that the employer can follow in response so that the DHS “will not use the letter as any part of an allegation that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work” in the U.S.

Constructive knowledge.

The final rule expands the current regulation’s definition of “constructive knowledge” and illustrates several situations that may lead to a finding that an employer had constructive knowledge that undocumented workers were employed. These additional examples involve an employer’s failure to take reasonable steps in response to several events: The employer receives a written notice from the Social Security Administration (such as an “Employer Correction Request,” commonly known as an employer “no-match letter”) stating that the combination of an employee’s name and Social Security number does not match SSA records, or the employer receives written notice from the DHS that the immigration status or employment authorization documentation presented or referenced by an employee in completing the I-9 verification form was not assigned to the employee according to DHS records. DHS said it “will continue to review the totality of relevant circumstances in determining if an employer had constructive knowledge that an employee was an unauthorized alien in a situation described in any of the regulation’s examples.”

Safe harbor procedures.

The “safe harbor” procedures that employers may follow to avoid a finding of constructive knowledge include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee’s identity and employment authorization through a specified process. Safe harbor is unavailable where the employee requests visa or labor certification sponsorship and is unauthorized to work. Additionally, if the employer knows or has enough inconsistent information to suggest an employee’s ineligibility, the safe harbor provisions will not protect that employer. On the other hand, the safe-harbor steps should be completed before taking any action against the employee to avoid national origin discrimination or wrongful termination claims.

The regulation describes more specifically the “reasonable” steps that an employer might take after receiving a no-match letter. Such steps include, for example, checking its records promptly after receiving a no-match letter to determine whether the discrepancy resulted from a typographical, transcription, or similar clerical error in the employer’s records, or in its communication to the SSA or DHS. If there is such an error, DHS expects the employer to correct its records, inform the relevant agencies, verify that the name and number, as corrected, match agency records, and make a record of the manner, date, and time of the verification. ICE/DHS will consider a reasonable employer to have acted promptly if the employer takes such steps within 30 days of receipt of the no-match letter. The regulation also describes a verification procedure that the employer may follow if the discrepancy is not resolved within 90 days of receipt of the no-match letter.

Enforcement.

Previously, the SSA’s position was that the no-match letters were only for informational purposes, recognizing that discrepancies could be the result of a variety of clerical errors or name changes. The no-match letters were not used for enforcement. That is expected to change, although how enforcement will look remains unclear. A DHS FAQ states, “ICE has determined that worksite enforcement investigations relating to critical infrastructure protection are among the most important. Additionally, ICE has found that simple penalties are not an effective deterrent. Therefore, ICE is looking at ways to bring significant criminal charges against businesses engaging in routine hiring of illegal aliens.”

SSA’s release of the tax year 2006 “no-match” letters will be accompanied by a letter from the DHS. SSA had planned to release the tax year 2006 “no-match” letters to employers beginning in the second week of September when the no-match regulation is due to be effective, but a federal judge issued a temporary restraining order on August 31, 2007, in response to an AFL-CIO lawsuit, and the next hearing is scheduled for October 1, so no letters are expected to be sent before October. DHS Secretary Michael Chertoff said, “They will not send all of them out at once; they’ll probably send about 15,000 out a week, over a period of probably about eight to ten weeks.” SSA expects to send out approximately 140,000 no-match letters that will cover approximately 8.9 million of the roughly 12 million total no-matches. Letters will only be sent to employers who have more than 10 employees with mismatched information, or for whom the mismatched employees represented one-half of one percent of the W-2s filed with SSAs in any given year, whichever is larger. ICE has 18 phone lines with 25 people on duty to answer questions from employers regarding the no-match rule.

Employers may verify a Social Security number by calling 1-800-772-6270 from 7 a.m. to 7 p.m. EST, or online at www.ssa.gov. Employers should keep a record of any verification. Contact your ABIL member for advice in specific situations.

Reaction.

Many business and labor groups oppose the new requirements. The agricultural trade association Western Growers, for example, whose 3,000 members are responsible for about half the produce grown and shipped in the U.S., immediately issued a strongly worded statement denouncing the requirements. “We know and have told the government that much of agriculture’s workforce is falsely documented. We are one of the only industries in this country that has been forthright with the fact that much of our workforce is illegal and have pleaded with the government to pass laws to address this problem. Instead of securing a legal, stable workforce for agriculture, these rules will make it even more difficult for farmers throughout Arizona, California and the entire nation to find workers to harvest and process the crops all Americans enjoy,” said Western Growers President and CEO Tom Nassif. “In the short term, we are going to see workers fleeing their workplace just prior to the 90-day time limit and beginning anew at a different farm. This cycle could go on for a long time furthering the instability of agriculture’s workforce. Secondly, these rules could expedite the move of American farms abroad. The fact is, our food is going to be picked by a foreign workforce. The question is, will they be harvesting our food here under heavy regulation ensuring our food supply is as safe as scientifically possible, or is it going to be in places like China where regulations are, in some cases, nonexistent?” He advocated a “common-sense” system such as that proposed by the Agricultural Job Opportunities, Benefits and Security Act (AgJOBS) bill.

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Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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