[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored by Bruce Buchanan, The I-9 and E-Verify Handbook.]
August 2007 saw United States Immigration and Customs Enforcement (ICE) released a long-awaited no-match letter regulation. After being quickly challenged in court, the regulation was barred from going into effect by a federal district court. 2 years later, in 2009, the regulation was rescinded by the Department of Homeland Security (DHS), and the Social Security Administration (SSA), furthermore, stopped issuing no-match letters until April 6, 2011. These no-match letters, however, were not under the 2007 regulation, and therefore failing to act on a letter did not constitute constructive knowledge. Budgetary reasons dictated the discontinuation of these no-match letters, which ended in August 29, 2011 and has not since resumed.
The rescinded regulation outlined employers’ obligation when they receive no-match letters from the SSA or receive a letter regarding employment verification forms from DHS. “Safe harbors” were also outlined in the regulation, allowing employers to avoid a finding that the employer had constructive knowledge that an employee referred to in the letter was an unauthorized alien ineligible for employment in the United States. Employers who do have that knowledge are liable for both civil and criminal penalties.
The no-match letter regulation is not in effect, but many immigration law compliance attorneys nevertheless expect such a regulation closely resembling the one released by ICE to eventually come into force.
Why did the court block the regulation from taking effect?
Before the regulation went into effect, it was challenged in court, and the judge who issued the preliminary injunction based the decision on three reasons:
- The U.S. Department of Homeland Security (DHS) failed to supply reasoned analysis justifying what the court thought was a change in the DHS position, that is, that a no-match letter may be independently sufficient to put an employer on notice that its employees may be unauthorized to work.
- DHS exceeded its authority (and encroached on the authority of the U.S. Department of Justice) by interpreting anti-discrimination provisions of the Immigration Reform and Control Act (IRCA).
- DHS violated the Regulatory Flexibility Act (RFA) by not conducting a regulatory flexibility analysis.
Why did U.S. Immigration and Customs Enforcement issue this regulation?
All United States based employers are required to report their employees’ Social Security earnings. These W-2 reports, which list an employee’s name, Social Security number (SSN), and the worker’s earnings are delivered to the Social Security Administration (SSA). In the event that an employee’s name and SSC do not match, the SSA sends and employer a letter informing the employer of the no-match. While in some cases, the no-match results from a clerical error or name change, it may also be indicative of an employee’s lack of work authorization.
ICE issues similar letters to employers upon the conclusion of its audits of an employer’s employment eligibility verification forms (Forms I-9) if it finds evidence that an immigration status document or employment authorization document fails to match the name of the person on the Form I-9.
An employer’s obligations after receiving such a letter had been considerably ambiguous, as well as whether an employer would be considered to be on notice of an employee’s lack of work authorization. Though it was achieved in a crass manner with respect to employers and workers, the regulation’s purpose was to clarify both of these ambiguities.
DHS cited Mester Manufacturing Company v. U.S. Immigration & Naturalization Service, 900 F.2d 201 (9th cir. 1990) reminding employers that if they have “constructive” knowledge of an employee being out of status, they are in violation of the Immigration Reform and Control Act (IRCA), the statute that punished employers for the knowingly hiring unlawfully present workers or for violating paperwork rules associated with the Form I-9 employment verification form.
How was the definition of “knowing” going to change in the regulation?
Two additional examples of “constructive knowledge” were added to the list of examples of information available to employers which indicate an employee is not authorized for employment in the United States. First, an employer receives a written notice from the SSA indicating an incongruity between the name and the SSN in SSA records. Second, an employer receives written notice from DHS that the immigration document that was presented when completing the Form I-9 was either assigned to another person or that there is no agency record that the document was assigned to anyone.
However, the question of whether the employer has “constructive knowledge” is dependent upon “the totality of relevant circumstances.” Therefore, the proposed regulation was merely a “safe harbor” regulation, informing an employer how to avoid a constructive knowledge finding without guaranteeing the employer will be deemed to have constructive knowledge if the employer deviates from the “safe harbor” procedure.
What steps should an employer take if it receives a no-match letter?
An employer first needs to assess its own records to rule out the possibility that a typographical, transcription, or some other clerical error resulted in the no-match. If there is such an error, the employer should correct it and inform the agency which sent the no-match letter, whether it be DHS or the SSA. The employer then needs to verify that the new number is correct and internally document the manner, time, and date of the verification. In the preamble to the regulation, ICE indicated that 30 days is an appropriate time frame in which an employer can take those steps.
If these actions do not resolve the discrepancy, the employer should contact the employee to verify the accuracy of the employer’s records. If they are incorrect, the employer needs to inform the relevant agency and verify corrected records. If the employee confirms that the records are correct, the reasonable employer should ask the employee to follow up with the relevant agency, such as visiting an SSA office and taking original or certified copies of required identity documentation. Again, 30 days is a reasonable time frame in which this step should occur.
Once 90 days have elapsed without a resolution to the discrepancy, an employer needs to undertake a procedure verifying the employee’s identity and work authorization. Once completed, the employer will not be deemed to have constructive knowledge that an employee is work unauthorized if the system verifies the employee, even if it is determined the employee is not actually work authorized. This assumes the employer does not have actual or constructive knowledge of an employee’s lack of work authorization.
Under the proposed regulation, if the discrepancy remains unresolved and the employee’s identity and work authorization are not verified, the employer is required to terminate the employee or else risk DHS finding the employer had constructive knowledge of the employee’s lack of employment authorization.
What is the procedure to re-verify identity and employment authorization when an employee has not resolved the discrepancy as previously described?
Within 93 days of receiving the no-match letter, the employer would need sections 1 and 2 of the Form I-9 completed. In the event of the employer taking the full 90 days to try to have the issue resolved, it would then be granted three additional days to complete the new Form I-9. AN employee is not permitted to use any document containing the disputed SSN, the “Alien number,” or a receipt for a replacement of such document. Only documents with a photograph may be used to establish identity.
Does an employer need to use the same procedure to verify employment authorization for each employee who is the subject of a no-match letter?
The anti-discrimination rules do mandate that the employer apply these procedures uniformly. DHS also reminds employers of the document abuse provisions barring employers from failing to honor documents which appear reasonable on face value. Employers under the proposed regulation, however, do have the “safe harbor” stating that this provision does not apply to documents that are the subject of a no-match letter.
DHS points out that employer requiring employees to complete a new Form I-9 must not apply this requirement discriminatorily. All employees who fail to resolve the SSA discrepancies should be required to provide a Form I-9 verification, and employers should apply a uniform policy to all employees refusing to participate in resolving discrepancies and completing new Forms I-9. Exempt from this rule are employees hired prior to November 6, 1986.
What if the employer has learned that an employee is unlawfully present from some source other than the Social Security Administration or the U.S. Department of Homeland Security?
Employees who have actual knowledge of an alien’s lack of work authorization are liable under the INA, regardless of their compliance with the Form I-9 and no-match regulations. However, the burden of proof lies with the government. DHS also notes that constructive knowledge may still be shown by reference to other evidence.
Will following the procedures in this proposed regulation protect an employer from all claims of constructive knowledge, or just claims of constructive knowledge based on the letters for which the employer followed the “safe harbor” procedure?
An employer that remains in compliance with the “safe harbor” procedure will be considered to have taken all reasonable steps responding to the notice, and the employer’s receipt of written notice will not be used as evidence of constructive knowledge. The employer is not protected, however, if other independent evidence exists of an employer’s constructive knowledge.
What are the timeframes required under the regulation to take each necessary action after receiving the no-match letter?
The timeframes were as follows:
- The employer checks its own records, makes any necessary corrections of errors, and verifies corrections with the Social Security Administration or the U.S. Department of Homeland Security within 30 days.
- If necessary, the employer notifies the employee and asks him or her to assist in the correction within 90 days. (Note that under the March 2008 proposed regulation, employers would have five days to notify employees of the no-match if the employer conducts its internal review.)
- If necessary, the employer corrects its own records and verifies the correction with the Social Security Administration or Department of Homeland Security within 90 days.
- If necessary, the employer performs a special Form I-9 procedure within 90 to 93 days.
May an employer continue to employ a worker throughout the process noted above?
Yes. Only if an employer gained actual knowledge of unauthorized employment would an employer need to terminate prior to 93 days. DHS notes that it does not require termination by virtue of this regulation, rather it is providing a “safe harbor” to avoid a finding of constructive knowledge. Employer could be allowed to terminate based on information in their own personnel files, including an employee’s poor attendance or an employee’s false statement to the employer. It is advised that employers consult employment and immigration compliance counsel prior to their termination of employees for reasons during the no-match process.
Employers may also terminate if they notify an employee of the no-match letter and the employee admits his or her lack of work authorization.
Does it matter which person at het place of employment receives the no-match letter?
No. DHS will not allow an employer’s designation of a specific person receiving no-match letters, regardless of concerns raised about the no-match letter not reaching the appropriate party. DHS has noted that an employer is allowed to designate an office within a company to receive all DHS and SSA mail.
Does verification through systems other than those described in the proposed regulation provide a “safe harbor”?
No. This includes instances in which the SSA provides options for SSN verification in addition to E-Verify. DHS notes, however, that it may choose to use prosecutorial discretion when employers take such steps.
Does an employer have to help an employee resolve the discrepancy with the SSA or DHS?
No. Employers only need to advise the employee of the timeframe to resolve the discrepancy. Employers have no obligation to assist in resolving the question or share any guidance provided by the SSA.
If a new Form I-9 is prepared based on this regulation, does that affect the amount of time the Form I-9 must be retained?
No. The original hire date remains the same even though the “safe harbor” procedure is utilized. For example, if an employee was hired several years ago, completes the Form I-9 again, and then moves on to a new employer, the original date of hire applies for purposes of determining the one-year retention requirement.
Will an employer be liable for terminating an employer be liable for terminating an employee who turns out to be work authorized if the employer receives a no-match letter?
If the employee is authorized to work and an employer does not go through the various “safe harbor” steps in the regulation, then the employer might be liable for unlawful termination.
What if the employee is gone by the time the no-match letter arrives?
An employer is not obligated to act on a no-match letter for employees no longer employed by it.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.