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Californian
Farm Bureau Federation
Office
of the General Council
Phone
(916) 561- 5650
Summary
of Department of Homeland Security (DHS) Final Rule
“
Safe
Harbor
Procedures for Employers who
Receive a No-Match Letter”
by
Carl Borden,
Associate Counsel,
Introduction
In
the wake of Congress’ failure to pass immigration-reform legislation,
the Bush administration on Aug. 10 announced a series of measures it
will pursue within the boundaries of existing law to secure the
nation’s borders more effectively, improve interior and worksite
enforcement, streamline existing guest-worker programs, improve the
current immigration system, and help new immigrants assimilate into
American culture. One measure is a new rule affecting employers who
receive so-called “no-match letters” from the Social Security
Administration (SSA).
Background
· Since 1987, federal law has:
o
Required
every employer to verify the identity and authorization to work in the
o
Prohibited
every employer from
§ Hiring
a person the employer knows is not work authorized
§ Continuing to employ
a person after getting knowledge that the person is not work authorized
· Knowledge
of an employee’s work ineligibility can be either actual
or constructive
Constructive Knowledge
· Constructive knowledge
is knowledge that may fairly be inferred through notice of certain facts
and circumstances that would lead a person, through the exercise of
reasonable care, to know about a certain condition
o
Example:
A longstanding DHS regulation has stated an employer may have
constructive knowledge that an employee is not work eligible where the
employer fails to complete or improperly completes Form I-9 (Employment
Eligibility Verification) for the employee
· Constructive knowledge
of an employee’s work ineligibility can also be imputed to an employer
who,
o
After
getting information
casting doubt upon the employee’s purported work eligibility,
o
Fails
to take reasonable steps
to ascertain whether the employee is truly work eligible.
o Example: An employer had constructive knowledge his employees were
not work authorized where, after being told by an INS officer that he
suspected them of using fraudulent immigration documents, the employer
made no further inquiry and took no appropriate corrective action (Mester Mfg. Co. v. INS
(9th Cir. 1989) 879 F.2d 561, 566-67)
The
Rule
· DHS issued on Aug. 10 a final rule affecting employers
who receive no-match letters from SSA
· The rule will take effect on
· A no-match letter
states that the combination
of name and social security account number (SSN) submitted by the employer to
SSA for an employee does not
match SSA records
· The rule says an employer may, depending upon the totality of
the circumstances, have constructive
knowledge that an employee
is not work authorized where
o
The employer fails to take reasonable steps after receiving information that the employee might not be work authorized, such as:
§ The employee’s
request that the employer file a labor
certification or employment-based visa
petition for the employee
§ A no-match letter
§ A DHS notice that
the immigration-status or employment-authorization document used by the
employee in completing Form I-9 is not assigned to the employee (DHS
notice)
The
Rule’s Safe Harbor
· The rule says DHS
cannot use a no-match letter as evidence of an employer’s
constructive knowledge of an employee’s work ineligibility where the employer has taken these steps:
o
Step
1 (Employer Checks its Records)
§ The employer must check
its records to see if the mismatch was due to a record-keeping error
by the employer
q If it was due to a record-keeping
error, then the employer must:
Ø Correct the error,
Ø Inform SSA of the
correct information, and
Ø Verify
with SSA that the
corrected name and SSN match SSA records
q The employer should document
that verification and store
that documentation with the employee’s Form I-9
§ The employer must do all of this within 30 days after it received the no-match letter
If
it determines the mismatch was not due to its record-keeping error, the employer must go
to
o
Step
2 (Employer Asks Employee for Information Confirmation)
§ The employer must promptly ask the employee to confirm that the name and SSN in the
employer’s records are correct
§ If the employee says they are incorrect, then the employer must do the things specified in Step
1 to correct record-keeping errors
If
the employee says the name and SSN in the employer’s records are correct,
the employer must go to
o
Step
3 (Employer Asks Employee to Resolve Issue with SSA)
§ The employer must promptly ask the employee to resolve
the issue with SSA
q
In doing so, the
employer must advise the employee:
Ø Of
the date on which the
employer received the no-match
letter and
Ø To
resolve the mismatch within 90
days of that date
The
employer must then go to
Step
4 (Employer Tries to Verify Information with SSA)
§
Within 90 days after
the employer’s receipt of the no-match letter, the employer
must try to verify with SSA that the employee’s name and SSN match
SSA records
§
The SSN Verification
System can be accessed online at www.ssa.gov/employer/ssnv.htm
or by telephone at (800) 772-6270
If
the employer within those 90 days cannot verify with SSA that the employee’s name and SSN match SSA
records, the employer must go
to
o
Step
5 (Employer and Employee Complete New Form I-9)
§
The employer and
employee must, within 93 days after the no-match letter receipt date, complete a new Form I-9 for the employee as if the employee were
newly hired except
q
To establish employment
authorization, identity, or both, the employer may
not accept
Ø A
document referenced in a DHS
notice
Ø A
document containing a disputed
SSN or alien number
referenced in a no-match letter
or DHS notice
Ø A
receipt for application for a
replacement of any such document
q
To establish identity
or both identity and employment authorization, the employee must show a
document that contains the employee’s
photograph
§ The employer must keep
the new Form I-9 with the
employee’s prior Form(s) I-9
o
The rule’s summary
says that if the discrepancy
can’t be resolved and the employee’s identity
and work authorization can’t be verified by that modified Form I-9
process, the employer must choose between
§ Firing
the employee or
§ Risking a DHS finding
that the employer had constructive knowledge that the employee was an
unauthorized alien and, by continuing to employ the person, violated the
law
No
Inference Employee is Unauthorized from Employee’s Appearance or
Accent
· Knowledge
that an employee is unauthorized
may not be inferred from an
employee’s foreign appearance
or accent
Honoring
of Documents
· The rule does not
permit an employer to
o
Ask an employee for more or different documents than those ordinarily required by law
o
Refuse
to honor documents
that on their face reasonably appear
to be genuine and to relate
to the employee, except
for a document referred to in an SSA no-match letter or DHS notice as to
which the employer hasn’t
received verification from SSA or DHS
Maximum
Fines for Knowingly Employing an Unauthorized Person (Per Employee)
· First
offense: $2,000
(Inflation-Adjusted Proposal: $2,500)
· Second
offense: $5,000
(Inflation-Adjusted Proposal: $6,000 - $7,000)
· Third
offense: $10,000
(Inflation-Adjusted Proposal: $12,000 - $14,000)
Issues/Comments
· Accepting
New Documents Could be Risky
o Step
5 of the safe harbor allows
an employer to continue to employ
an employee with a disputed SSN by completing
a new Form I-9
o
Further, the rule’s
prohibition against an employer’s refusal to honor apparently genuine
documents shown by the employee in that process seems to mean an
employer could and should accept
as proof of work authorization, for example, an alien card (perhaps even
the one the employee may have shown to prove work authorization when
first hired) or a Social Security card with a non-disputed that seems
genuine
o
By doing so, the
employer would technically be
complying with a strict and narrow reading of the rule’s safe
harbor and should thus be entitled
to its protection (i.e., against use by DHS of the no-match letter
as evidence of the employer’s constructive knowledge that the employee
was an unauthorized alien)
o
But the rule’s
summary notes that the presentation
by an employee of different
documents with different
numbers, depending on the circumstances, may put the employer on
notice that the employee has committed document
fraud
o
The implication is
that being put on such notice
could be deemed constructive
knowledge
o
But: Then why didn’t DHS include in the rule itself the presentation by an employee of different documents as an example of constructive
knowledge?
o
A court may
ultimately weigh in on this, but meanwhile an
employer accepting different documents would be acting at its own risk
· Seasonal Employees
o
The rule covers only situations where a person is currently employed
o
It doesn’t
cover situations where a no-match letter identifies an ex-employee
o
Its summary notes
that an employer need not act
on a no-match letter identifying an ex-employee;
the employer couldn’t be
guilty of a continuing-employment violation as to an ex-employee
o
The summary says in
situations where an employer
cannot use the safe harbor
(perhaps such as for seasonal employees whose employment breaks and
resumes sporadically) an employer should act
in good faith to resolve no-match issues as soon as practicable and
make and keep documentation
of those efforts
o
So, for example, an employer might be able to show it made a good-faith effort
where it rehires a seasonal employee for whom a no-match letter was
received during the off season but then applies
the safe-harbor steps the best it can
Advice
· Follow Form I-9 Procedures
o
When hiring
employees, meticulously follow
the Form I-9 employment-eligibility verification steps
· Don’t Ignore No-Match
Letters
o
If, upon
getting a no-match letter, you decide
to follow the rule’s
safe-harbor steps, follow them precisely
o
In any event, upon getting a no-match letter, don’t ignore it; even if you
can’t or decide not to follow the safe-harbor steps, take some action that is reasonably
intended to resolve the discrepancy
o
Thoroughly
document all steps you take to resolve no-match discrepancies, and
keep that documentation
· Consider using
the H-2A temporary
foreign agricultural worker program
· Consider using
E-Verify (http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm),
an Internet-based system operated by DHS and SSA that allows employers
to electronically verify the employment eligibility and SSNs of their
newly hired employees