Workplace enforcement of immigration laws is about to come back in to the news as we have received word that the Department of Homeland Security will release a new version of the Social Security No Match rule possibly this week. The rule is the sort of a great deal of anxiety for the business community which fears the economic havoc it could wreak as well as for those who worry about the reliability of the Social Security Administration to resolve problems quickly enough to prevent innocent people – often US citizens – from losing their jobs.
Some of you who have not been following the no match saga closely might need a refresher. All employers in the US are required to verify the identity and employment authorization of their employees. To accomplish this, the government requires employers to have all of their workers complete Form I-9 on the day they are hired. Employees must present proof of their identity and eligibility to work legally in the US and the documentation must be included on a list updated periodically by USCIS. The vast majority of American workers prove identity and employment authorization by showing a combination of a driver’s license and a Social Security card.
Where things get tricky for employers is when an employee present what looks like a valid Social Security document and then it turns out later that the number on the card and the name of the employee don’t match. The name might not match because of a clerical error on the part of the employee, employer or Social Security Administration. But it may very well be that the employee presented a false document.
Several years ago, the Social Security Administration started sending out letters to employers when they discovered "no matches" at a particular employer. Initially, the goal of these letters was merely to figure out how to properly account for the billions of dollars piling up in a no match account at the SSA. But it didn’t take long to discover that the letters had the effect of causing workers using false documents to leave a company in droves. The rules relating to what an employer should do when receiving such a letter have been highly confusing with employers not sure exactly what they needed to do with the letters and what impact the letters would have on an employer being considered to have knowledge that their employees are not authorized to work in the US.
As part of the get tough enforcement strategy the White House is putting in to place, a proposed no match rule was released in 2006 that would spell out very clear rules on what an employer should do when receiving a no match letter. Employers would be required to take certain steps in a specific time frame or they could be found liable for having constructive knowledge of an employee’s lack of legal status should it turn out that a worker is not authorized to be employed in the US.
In August 2007, the Department of Homeland Security released a final rule that was to take effect in September 2007. But a coalition of labor, business and civil liberties groups filed suit to stop the rule from taking place and a judge issued an order stopping the rules from going in to effect until after a ruling at trial. Rather than fight, DHS chose to instead re-draft the rules to meet the judge’s concerns and it is that new version of the rules that is supposed to be released this week. We don’t know exactly what will be in there, but expect some improvement in the area of what to do when the SSA has not cleared up a problem in the 90 day timetable contemplated under the previous version of the rule.
As we did in August, SSB will be releasing a special newsletter summarizing the new rule for our readers. I hope to have it in place on the same day the rule is released.
In firm news, I will be speaking at several upcoming live and telephonic programs. They include
February 5-6 – Webcredenza - Employer Immigration Compliance two part lunchtime teleconference (recorded for later distribution)
February 21st – American Immigration Lawyers Association – teleconference on no match letters and related topics
February 22nd – Tennessee Bar Association – Law Technology 2008 - Nashville – Internet marketing - https://www.tnbaru.com/CLE/catalog_course_details.php?course=5114
March 6th – AILA DC Chapter – Washington – Winning the Championship: Overcoming the Obstacles Facing Immigration Lawyers Today
March 15th – American Bar Association Techshow – Chicago – www.techshow.com