Immigration Law Advisory - More Work, Greater Potential Liability for Employers

“Most businesses want to do the right thing when it comes to employing legal workers,” Department of Homeland Security (DHS) Secretary Michael Chertoff says.  To make it clearer to businesses and employers how to comply with immigration laws, which have been known to be vague, DHS, through Immigration and Customs Enforcement (ICE), has proposed a rule to amend the regulation governing the legal obligations of an employer upon receiving a “no-match” letter from the Social Security Administration (SSA).  No-match letters inform an employer and employee that the information on wage documents do not match a Social Security number in SSA’s database.  DHS sends a similar notice to an employer after a worksite audit or investigation reveals that documentation presented by an employee in completing the Form I-9, Employment Eligibility Verification, is invalid.  In either situation, the discrepancy may be due to the use of false documents, reflect a clerical error such as misspellings or a name change, or simply be a mistake in the government data base. 

Last year the SSA sent out eight million no-match letters to employees and 128,000 letters to employers.  ICE Assistant Secretary Julie Myers has made it clear that ICE wants Congress to give it access to SSA no-match information because, in Myers’ stated opinion, the fact that companies have submitted Social Security data inconsistent with information on file is a strong indicator of an illegal worker problem at a company.  That conclusion should give employers something to be concerned about.

The proposed rule specifies the steps an employer must take as a reasonable response to receipt of a no-match letter and the time frame in which these steps must occur.  Following the proposed steps and time frame may provide an employer a “safe harbor” from allegations that it violated immigration laws by having “constructive knowledge” that an employee lacks work authorization.  If an employer follows these procedures and verifies work authorization, the employer will not be considered to have constructive knowledge, even if the employee is unauthorized.  However, the rules require greater effort and a quick response on the part of the employer.

Within 14 days of receipt of the letter, the employer must determine whether the discrepancy resulted from a clerical error in its records or in its communication to the SSA or DHS.   If so, the employer must correct the error and verify resolution of the discrepancy with the relevant agency.  If the discrepancy did not result from a clerical error on the part of the employer, the employer must confirm its records with the employee, make any necessary corrections, and verify that the discrepancy has been resolved with the relevant agency.  If the agency states that the original information about the mismatch or invalid documentation is correct, the employer must ask the employee to go to the local SSA office and resolve the matter in person.  The discrepancy will be considered resolved only if the employer verifies with SSA or DHS that the employee’s name matches a number in SSA’s records which is assigned to that name and which is valid for work or is valid for work with DHS authorization (and verifies the authorization with DHS), or that DHS records indicate that the immigration status document or employment authorization document is valid and was issued to the employee. 

If the discrepancy is not resolved within 60 days of receiving the no-match letter, the employer must complete a new Form I-9 for the employee and verify employment eligibility within 63 days of receipt of the no-match letter.  However, in re-verifying, the employer may not accept a document containing the Social Security Number or alien number that is the subject of the no-match letter and also may not accept a receipt for an application for a replacement of such a document to establish employment authorization or identity.  In addition, no document without a photograph may be used to establish identity or employment authorization.  This is a very tight time frame in which to act.

If the discrepancies remain after following the above procedures, the employer must terminate the employee or risk a finding of constructive knowledge that the employee was unauthorized.  The employer must, of course, apply the proposed procedures and terminate the employee in accordance with all applicable anti-discrimination laws.  Mere receipt of a no-match letter or similar communication from DHS is not an excuse for firing an employee.

The proposed rule offers clarification from ICE and DHS to the business community about what to do when a no-match letter arrives.  But the rule also increases the burden on employers and the pressure on employers to terminate employees who may have used false documents to get a job or who, for other reasons, cannot provide the required documentation.  Often, the receipt of a no-match letter questioning the worker’s documentation is the first indication an employer may have that a problem exists.  It is not unusual for a company to receive several hundred letters from SSA at one time, mostly due to clerical errors in the employer’s or SSA records.  Responding properly within the proposed 14 day time frame may be difficult, if not impossible, for many employers.  Failure to properly respond within the proposed time frames may result in a finding that an employer is liable for a violation of immigration laws and subject to criminal as well as civil penalties.

ICE has asked employers to provide written comments on the proposed regulation and has announced that it is particularly interested in comments on the proposed time frames, specifically the 14- to 60-day period for resolving discrepancies.  ICE has also asked for specific factual support and examples of circumstances that would make it hard for employers to resolve the issues raised in a no-match letter within 60 days.  Employers who find these proposed regulations burdensome or problematic would be well-advised to share their thoughts and recommendations with ICE if they hope to see some changes in the final rule.

Comments must be received by August 14, 2006, and should be sent by email to rfs.regs@dhs.gov, or by mail to Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW, 2nd Floor, Washington, D.C.  20529.  ICE has instructed employers to identify comments by “DHS Docket No. ICEB-2006-0004.”

If you would like additional information or assistance, please contact Lynda Zengerle at (202) 429-8170, lzengerle@steptoe.com, or Joan Claxton at (202) 862-3891, jclaxton@steptoe.com.