Special Immigration Alert: DHS Issues Final Rule Defining Safe Harbor Procedures for Employers Receiving “No-Match?” Letters

Today, the Department of Homeland Security ("DHS") issued its long-awaited final rule governing the best practices for responding to "No-Match" letters. This follows the DHS proposed rule that was published in June 2007. The DHS rule will become effective on September 14, 2007. Those of you that have been reading our alerts and following our advice, however, should be familiar with using these "new" procedures because we have been recommending compliance with the procedures outlined in the proposed rule since it was first announced.

Basically, the DHS rule addresses the problem that employers face when they receive notice from either DHS or the Social Security Administration ("SSA") that the name and Social Security number provided by an employee, either as part of the Form I-9 verification process or later, do not match. The SSA letters state explicitly that, standing alone, they do not provide the basis for an adverse employment action or termination, because there could be many reasons for the no-match. The immigration agencies, Immigration Customs Enforcement ("ICE"), Customs Border Protection, U.S. Citizenship and Immigration ("USCIS") and DHS, all proposed varying solutions but none could agree on a common process for addressing the problem. This lack of consensus became more troublesome as ICE expanded its worksite enforcement actions and began prosecuting employers and their representatives criminally because, among other reasons, they did not act forcefully in response to large numbers of No-Match letters that should have alerted them to a pervasive problem regarding the employment of undocumented individuals at their facilities.

The DHS proposed rule basically does two things. First, it expands the definition of an employer's "constructive knowledge" of an unauthorized worker to include where the employer receives: (a) a request from the employee for sponsorship for permanent residence; (b) a "No-Match" letter from the SSA; or (c) a letter from DHS (usually after a Form I-9 audit) indicating that a employee's employment authorization documents do not match DHS records. As a result of this expanded definition, any employer confronted with these three events, in addition to others already in the regulations, now is deemed by operation of law to have knowingly employed an unauthorized worker and thus is subject to the civil and criminal penalties that apply to these legal violations.

Second, the DHS rule outlines a "Safe Harbor" protocol that employers can use to insulate themselves from legal liability when confronted with the possibility of constructive knowledge of an unauthorized worker. The employer is given 93 days to complete its review under this protocol and the clock starts ticking as soon as the employer receives a No-Match letter from SSA or the DHS or a request for permanent residence sponsorship from a purportedly legal employee. Under the protocol outlined in the DHS rule, the employer must do the following:

1. Employee Record Check: Within 30 days of receiving notice, the employer must review its records to determine if the discrepancy was caused by a clerical error. If so, the employer must correct the problem and notify the SSA of the correct information. The employer also must verify that the name and Social Security number, as corrected, match what appears in the SSA database, and attach the record of this verification to the employee's Form I-9. The employer should correct the information in the employee's Form I-9, noting clearly the date of the correction and who made it, but should not perform a new Form I-9 verification. Finally, the Employer should maintain records evidencing what it has done and when.

2. Employee Confirmation: If the employer determines that its records are correct, it then must promptly request the employee to confirm that the name and Social Security number in the employer's records are correct. If the employee says the information is wrong, the employer must make the corrections in the same manner as it did for correcting its own records. The employer then must verify that the name and Social Security number, as corrected, match what appears in the SSA database, and attach the record of this verification to the employee's Form I-9. The employer should correct the information in the employee's Form I-9, noting clearly the date of the correction and who made it, but should not perform a new Form I-9 verification. Finally, the Employer should maintain records evidencing what it has done and when.

3. Employee Corrections: If the employee claims that the information it supplied is correct, the employer must advise the employee to resolve the discrepancy with the DHS or SSA within 90 days after the receipt date of the "No-Match" letter, and provide the employee with the exact date it received that letter. The employer is under no legal obligation to direct the employee how to accomplish this. It should advise the employee, however, that it will need to re-verify that employee's identity and work authorization on Form I-9 after 90 days if the problem cannot be resolved.

4. New Employee Verification: If the employer cannot resolve the discrepancies noted by either the SSA or DHS within the 90 day period, it must perform a completely new Form I-9 verification within three days after the 90 day period has expired. In performing this new form I-9 verification, the employer may not accept any document referenced in the "No-Match" letter, any document that contains or references the disputed Social Security number, or any receipt for an application to replace these documents. In addition, the employer must require the employee to present a document containing a photograph to establish identity and/or work authorization. Thereafter, the new Form I-9 must be retained in accordance with the normal rules that apply to Form I-9 retention.

5. Employee Termination: To benefit from these "Safe Harbor" rules, the employer must terminate any employee where it cannot define and correct the source of the discrepancy noted in the "No-Match" letter and where the employee cannot satisfy the Form I-9 requirements for re-verification under this regulation. If the employer fails to terminate the employee, it runs the clear risk of a subsequent DHS enforcement action and the civil and/or criminal penalties associated with knowingly continuing to employ an undocumented worker.

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