In reaction to the growing political firestorm over illegal immigration, last week, the Department of Homeland Security announced its intent to significantly increase enforcement efforts and penalties against employers that use illegal immigrant workers.
In addition, DHS announced finalized regulations, effective September 14, 2007, for employers who receive "No-Match" letters received from the Social Security Administration. A No-Match letter is issued when tax documents submitted by an employee do not match the information on file for that individual with the SSA. Receipt of such a letter does not necessarily indicate that the employee has provided false information, but does indicate that further investigation is necessary.
In the past, employers who received No-Match letters were caught between a rock and a hard place. Because taking adverse action against an employee named in the letter could result in a discrimination suit, some employers some simply ignored No-Match letters. In its new rules, DHS makes clear that improper handling of a No-Match letter may constitute constructive knowledge that an employee is not authorized to work, thus leading to criminal or civil enforcement action. The DHS Safe Harbor Procedure provides employers with clear instructions about what to do when a No-Match letter is received.
The safe harbor response recommended by DHS to avoid constructive knowledge of illegal status consists of the following steps:
- Review personnel records to determine if the discrepancy resulted from a paperwork error. If this is the root of the problem, the employer must correct the error with SSA.
- Request that the employee confirm that the employer’s records are correct. If the employer’s records are incorrect, the employer must provide SSA with the corrected information.
- If the discrepancy remains unresolved, the employer must promptly advise the employee to resolve the discrepancy with SSA no later than 90 days after the employer’s receipt of the No-Match letter.
- If the employee is unable to resolve the discrepancy, the employer has 93 days from receipt of the No-Match letter to reverify the worker’s employment eligibility by completing a new Form I-9.
In completing the new Form I-9, the employee may not present any document containing the social security number that is the subject of the No Match letter. In addition, the employee must present a document that contains a photograph in order to establish identity. Employers should uniformly apply these steps to all employees who are the subject of No-Match letters to avoid claims of national origin or other illegal discrimination.
In addition to the new regulations, DHS announced a series of future actions affecting employers:
- DHS announced its intent to reduce the number of documents that can be accepted as part of the I-9 verification process.
- DHS will raise civil fines against employers found to be using illegal workers by 25%.
- The Bush Administration announced its intent to significantly expand the number of criminal investigations of employers suspected of using illegal immigrants. In recent months, there have already been a series of high profile criminal actions against employers.
- Federal contractors will be required to electronically verify work eligibility for all employees.
- Electronic verification programs will be expanded and improved.
Despite its inability to obtain comprehensive immigration reform, the Bush Administration clearly has decided to toughen enforcement mechanisms even in the absence of expanded guest worker or legalization programs. These new rules and other proposals signal a continuation of the federal government’s efforts to tighten immigration enforcement in the workplace. Employers should review their current I-9 and immigration compliance practices and contact counsel about how to improve those practices.
This Client Alert is intended to inform readers of recent developments in the field of immigration law. It should not be considered as providing conclusive answers to specific legal problems.
