As I previously discussed in this Blog, On August 10, 2007, DHS released an advance copy of the final ICE “No-Match” regulation, “Safe Harbor Procedures for Employers Who Receive a No-Match Letter.” Publication of the final rule in the Federal Register is expected the week of August 13, 2007. The final rule will become effective 30 days after publication.
The final rule expands the definition of “constructive knowledge” to include the failure to take reasonable steps to address three situations: (1) an employee’s request for the employer’s sponsorship of the employee for a labor certification or visa petition; (2) receipt of a no-match letter from the Social Security Administration (“SSA”); and (3) receipt of a notice from DHS (usually after an I-9 audit) that the employee’s employment authorization documents presented in connection with completion of the I-9 form do not match DHS records.
The final rule includes slight revisions to the June 2006 proposed “safe harbor” protocol in relation to SSA no-match letters and DHS notices, most notably extending from 63 days to 93 days the period of time an employer has to complete reconciliation of information when there is a discrepancy, and promises immunity from a constructive knowledge charge premised on such notices should the employer follow the procedure exactly as stated. While acknowledging that other actions taken by employers may constitute “reasonable steps” in the context of a “total facts and circumstances test,” employers who fail to follow the protocol may not have the “safe harbor” from a finding of constructive knowledge in the event of a civil or criminal investigation.
In final form, the “safe harbor” protocol is as follows:
Within 30 days of Receipt of the Notification From the Government No-Match Letter from SSA:
The employer must check its records to determine whether the discrepancy was caused by a clerical error, correct the error with SSA, and verify that the corrected name and social security number now match SSA’s records. The rule advises employers to retain a record of the manner, date, and time of such verification. The employer may update the I-9 form relating to the employee or complete a new I-9 (retaining the original), but should not perform a new I-9 verification.
If the employer determines that the SSA no-match is not a result of an error in the employer’s records, the employer must promptly request that the employee confirm that the name and social security account number in the employer’s records are correct. If the information is incorrect, the employer must make corrections, inform the SSA of the correction and verify a match on the corrected information, and make a record of its actions.
If the employee confirms that the employer’s record information is correct, the employer must promptly advise the employee of the date of receipt of the no-match letter and advise the employee to resolve the discrepancy with the SSA no later than ninety (90) days after the receipt date. The employer is under no legal obligation to advise the employee regarding the means or manner of resolving the discrepancy with the agency.
Notice of discrepancy from DHS: The employer must contact the local DHS office in accordance with the written notice’s instructions and attempt to resolve the question raised by DHS about the immigration status document or employment authorization document. Note that the specific instructions in the notice may provide less than 30 days for the employer to respond.
Within 93 days of Receipt of Notification From the Government
If the discrepancy cannot be resolved with either SSA or DHS within 90 days of receipt of the written communication from either agency, the employer must attempt to reverify the worker’s employment eligibility by completing a new I-9 employment verification form. Companies should use the same procedures as when completing an I-9 form at the time of hire, with a few exceptions:
The employee must complete section one and the employer must complete section two of the new I-9 form within 93 days of receipt of the notice from either SSA or DHS.
The employer cannot accept any document (or receipt for such a document) referenced in the DHS notification or any document (or receipt) that contains a social security number that is the subject of the SSA no-match letter to establish employment authorization or identity.
The employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization.
The new I-9 form should be retained with the original I-9 form(s).
If the employer cannot verify the employee’s work eligibility through completion of a new I-9 form, the employer must decide whether to terminate the employee, or face the risk in any subsequent DHS enforcement action of being determined to have constructive knowledge and being penalized for the continuing employment of an unauthorized alien. The final rule provides that whether an employer would be found to have constructive knowledge in any particular case will depend on the “totality of relevant circumstances.” An employer should not terminate an employee until the process is completed, unless the employer obtains actual knowledge (such as through an admission by the employee) that the employee is not eligible for employment in the U.S.
DHS takes the position that applying the safe harbor rule in a uniform manner for all employees whose account numbers or work authorization documents are challenged by the SSA or DHS should not subject an employer to liability for document abuse and/or unlawful discrimination on the basis of national origin and citizenship status.
No “safe harbor” protocol is available where an employee requests employer sponsorship for a labor certification or visa petition and the employee turns out to be unauthorized. Where the request is made by an employee who admits to the employer that he/she is currently unauthorized, or where the request is inconsistent with information provided by the employee in connection with the employment verification process (i.e., a claim of U.S. citizenship or permanent resident status in Part I of the form), the employer may be charged with actual or constructive knowledge of unauthorized status if the employer permits the employee to continue working for the employer.