Judge issues Temporary Restraining Order for New No-Match Rules: A federal district judge in San Francisco blocked the government from implementing its new rules on Social Security No-Match letters that were due to go into effect on September 14th. In a suit filed by the AFL-CIO and the American Civil Liberties Union, the judge granted a request for a nationwide temporary restraining order that will be in effect until October 1, when another judge will hold a hearing to decide whether to issue a permanent injunction in the case. We will continue to monitor the situation and put updates on our website.
Social Security No-Match Regulation Broadens Definition of "Knowledge"
On September 14, 2007, a new Immigration and Customs Enforcement (ICE) regulation goes into effect that will change the way that businesses must deal with the receipt of no-match letters from the Social Security Administration (SSA) and similar letters from ICE after an I-9 audit. Since 1986, employers have been prohibited from knowingly hiring or continuing to employ unauthorized workers. The old rules make employers responsible not only for what they know (actual knowledge), but also what they should know (constructive knowledge). The new rule expands the definition of “constructive knowledge.” If an employer does not follow the new regulation’s “safe harbor” steps after the receipt of a no-match letter, ICE could use this as evidence that the employer has constructive knowledge that an employee is unauthorized to work in the U.S.
Employers that receive no-match letters must complete the following steps in order to take advantage of the “safe harbor” provision:
1) Check company records for clerical errors within 30 days upon receipt of a no-match letter and, if possible, correct the record and verify that there is a match with the relevant agencies (for SSA no-matches, employers can use the Social Security Number Verification System (SSNVS) through www.ssa.gov/employer/ssnv.htm or 1-800-772-6270). Employers should make a record of the manner, date and time of the verification.
2) If there is still a no-match, ask the employee to confirm that the employer’s records are correct within 30 days upon receipt of a no-match letter. If there is an error, then correct the record and verify that there is a match with the relevant agencies. If the records are correct, ask the employee to pursue the matter with the relevant agency. Tell the employee that he or she has 90 days to address the situation and get the matter resolved.
3) If the no-match is not resolved within 90 days after receipt of the letter, complete a new I-9 for the employee within 93 days from the receipt of the letter. However, the employer cannot accept a document with the SSN that was the subject of the no-match letter. Also, identity documents (I-9 List B) and documents used to establish both identity and eligibility for employment (I-9 List A) must contain a photograph.
4) If the no-match is not resolved and the employee’s identity and work authorization cannot be verified through the I-9 process, then the employer must take action to terminate the employee or risk liability for knowingly continuing to employ an unauthorized worker.
It is important to remember that companies should apply policies consistently to all employees with no-match issues to prevent violations of anti-discrimination laws. ICE officials have recently indicated that worksite enforcement is a top priority for the agency. The new “no-match” regulation is only one piece of their enforcement strategies. Employers can face severe civil and criminal penalties for violations, including fines and jail time.
Our firm has taken a number of steps in response to ICE’s expansion of worksite enforcement. We have created a “bundled services” approach to provide employers with a package of services to protect themselves in the new climate of ICE enforcement. We have also scheduled a special session as part of our advanced seminar on September 28, 2007 to address these issues. For more information, please use the “Contact Us” link on our website http://www.secalaw.com/.
NEW ICE NO-MATCH REGULATION
On August 10, 2007, the Department of Homeland Security released an advance copy of the much-awaited Social Security “No-Match” regulation which determines what an employer must do if it receives a no-match letter from the Social Security Administration. The rule expands the definition of “constructive knowledge” and sets forth steps an employer must take if it receives a no-match letter.
Our office is following these developments which is part of our ongoing efforts to work with employers to create a specific employee verification program that takes into account all of the Federal and State laws on employee verification.
GOVERNMENT STEPS UP IMMIGRATION ENFORCEMENT
The Bush Administration announced on August 10, 2007, 26 new measures which continue or expand current policies or procedures for stepping up enforcement against employers who hire undocumented workers. Many politicians and leaders have reacted to the announcement according to their respective positions on immigration law and comprehensive immigration reform. Employers should take steps to make sure their employee verification systems are in compliance with State and Federal laws.
Department of Homeland Security Seeks to Upgrade Employee Verification System
President Bush and the Department of Homeland Security have indicated that the system in place for verifying the status of new employees needs to be substantially revamped. “We must create a better system for employers to verify the legality of their workers” said President Bush.
It is estimated that the current system, the Basic Pilot Program, has an error rate of up to 20% and is very difficult to use. Hopefully, a more user-friendly system will be created in parallel with comprehensive immigration reform.
List of Acceptable Documents
LIST A
Documents that establish both identity and employment eligibility
- U.S. Passport (unexpired or expired)
- Unexpired foreign passport with I-551 stamp or attached Form I-94 indicating unexpired employment authorization
- Permanent Resident Card or Alien Registration Receipt Card with photograph (Form I-151 or I-551)
- Unexpired Temporary Resident Card (Form I-688)
- Unexpired Employment Authorization Card (Form I-688A)
- Unexpired Employment Authorization Document issued by DHS that contains a photograph (Form I-668B)
LIST B
Documents that establish identity
- Driver’s license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address
- ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address
- School ID card with a photograph
- Voter’s registration card
- U.S. Military card or draft record
- Military dependent’s ID card
- U.S. Coast Guard Merchant Mariner Card
- Native American tribal document
- Driver’s license issued by a Canadian government authority
For persons under age 18 who are unable to present a document listed above:
- School record or report card
- Clinic, doctor or hospital record
- Day-care or nursery school record
LIST C
Documents that establish employment eligibility
- U.S. social security card issued by the Social Security Administration (other than a card stating it is not valid for employment)
- Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350)
- Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal
- Native American tribal document
- U.S. Citizen ID Card (Form I-197)
- ID Card for the use of Resident Citizen in the United States (Form I-179)
- Unexpired employment authorization document issued by DHS (other than those listed under List A)