The Department of Homeland Security (DHS) officially made public last August 15 its latest weapon against undocumented workers.
Known as the “no match letter” regulation, it obligates employers to check the immigration status of their employees. The regulation takes effect on September 14.
“No match letters” are routinely sent out to employers by the Social Security Administration (SSA) if the social security number of an employee on file with the employer does not match the government records. Under this new regulation, the employer is required to take corrective steps upon receipt of the letter. If the employer ignores the letter, it will be in violation of immigration laws.
Discrepancies in social security numbers may be caused by a clerical error or by the failure of the employee to register her change of name after her marriage.
The employer must check its records to ascertain the reason for the discrepancy and if it’s a clerical error, it must correct the error with the SSA. It has to document the manner, date and time of its verification.
If the error is not clerical, the employer must ask the employee to confirm that his name and social security number in the employer’s file are correct. The employer must then inform the employee of the “no match letter” and advise him to clarify the discrepancy with the SSA no later than 90 days from the receipt date.
If there is a notice of discrepancy from the DHS, the employer must contact the DHS and try to resolve questions about the employee’s immigration status or employment authorization.
If the issue cannot be resolved with the SSA or DHS within 90 days of receipt of the letter, the employer must then require the employee to complete a new Form I-9 within 93 days of receipt of the notice. In completing the form, the employee will be required to submit documents with a photograph to prove his identity and employment authorization.
If the discrepancy is not resolved within 93 days the employer will have to terminate the employee or face criminal or civil penalties.
If the employer follows the above procedures, it will avoid liability even if the employee is in fact unauthorized to work. This is the so called “safe harbor” that is mentioned in the regulation.
The employer will be at risk if it is found to have constructive knowledge of the lack of immigration status of the employee but fails to take reasonable steps to address the issue. Constructive knowledge exists under the following situations: (1) When the employee requests the employer sponsorship for a labor certification or visa petition, (2) when the employer receives a “no match letter” and (3) when the employer receives a notice from the DHS that the employee’s authorization card does not match the records of the DHS.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at http://www.seguritan.com/.