The Department of Homeland Security (DHS), Bureau of Immigration and Customs Enforcement (ICE), has published a final rule to amend the regulations relating to the unlawful hiring or continued employment of unauthorized aliens. The amended regulation describes the legal obligations of an employer that receives a "no-match" letter from the Social Security Administration (SSA) or the DHS. The final rule takes effect on September 14, 2007.
The regulation recommends "safe-harbor" procedures an employer can take to resolve the "no-match" and, if it cannot be resolved within a maximum of 93 days, verifying again the employee's identity and employment authorization through the I-9 process. These procedures are discussed in more detail in an ICE Fact Sheet, "ICE and Social Security Administration 'No-Match' Letters" and a sample SSA "No-Match" Insert Letter.
Click here to access the ICE Fact Sheet.
Click here to access the sample SSA "No-Match"
What should employers do to prepare for the implementation of this regulation?
- Establish consistent procedures to address the receipt of "no-match" letters. Larger companies may want to appoint an internal compliance officer to address employment verification and "no-match" issues. Employment and immigration counsel should be contacted to assist in developing procedures that best suit their business and are consistent with legal obligations.
- Employers should not overreact. Receipt of a "no-match" letter from SSA does not legally establish that an employee is not authorized to work in the United States. Many circumstances, including transcription errors and name changes due to marriage, can trigger a mismatch between an employer's records and SSA records.
- Upon receipt of a "no-match" letter, an employer should promptly (within 30 days) check its records to ensure a mismatch was not the result of transcription or record-keeping error on its part. The employer should also ask the employee to verify the accuracy of the employer's records and subsequently follow established procedures to resolve the discrepancy.
- Employers should not immediately terminate an employee or request to re-examine identity and work authorization documents without first attempting to resolve the discrepancy through established procedures or complying with the "safe-harbor" procedures detailed in the regulation. Employment or immigration counsel should be consulted if the discrepancy is not resolved and before any employment action to guard against discrimination and wrongful terminations claims brought under competing federal and state laws.
- Employers should keep in mind that this rule and the "safe-harbor" provisions address only situations in which the DHS may find an employer had "constructive knowledge" of an unauthorized worker. Employers may still be liable if the DHS makes a finding of "actual knowledge" that an employee was not authorized for employment.