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/.
