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New Immigration and Worksite Enforcement Rules Promise Stricter Scrutiny of Employee Work Authorizations

Date: 8.14.2007

Department of Homeland Security Secretary Michael Chertoff and Commerce Secretary Carlos Gutierrez have announced a series of changes on border security, employer responsibility for the improper use of Social Security numbers, and mandatory electronic employment verification for Federal contractors and vendors, among others. The new reforms announced August 10, 2007, among other things, will increase funding for detention beds, border-fencing, and additional personnel, require the training of hundreds of state and local law enforcement officers to address illegal immigration, initiate action to close the "voluntary departure loophole", and require all Federal contractors and vendors to use the new Federal Electronic Employment Verification System (E-Verify) to ensure that their employees are authorized to work in the U.S. The Government also announced it would make it easier for employers to obtain temporary workers by issuing regulations revising the H-2A temporary agricultural worker program, streamlining the H-2B program for nonagricultural temporary workers, and increasing the validity period of TN visas for Canadian and Mexican nationals from one year to three years.

"No-Match" Regulations

Among the measures announced is the issuance of the final rule on the long-awaited "no-match letter" regulation that was proposed over a year ago (71 FR 34281 (06/14/06). The regulation relates to letters issued to employers by the Social Security Administration ("SSA") when SSA discovers that a Social Security record does not match the information provided by the employer. The regulation is designed to help employers ensure that their workers are legal and to help the Government identify and penalize employers who knowingly employ illegal workers. The final regulation reiterates that employers will be held liable for hiring undocumented workers if they receive a no-match letter and fail to respond within 90 days. The final regulation, which is yet to be published in the Federal Register, specifies "safe harbor" procedures for employers which receive such letters. By taking these steps in a timely fashion, an employer may avoid a DHS finding of knowingly employing an illegal alien.

Under current immigration regulations, it is unlawful for an employer to employ an alien with knowledge that the alien is (or has become) an unauthorized alien. An employer that hires or continues to employ a person with knowledge that the person is not authorized to work in the U.S. is liable for civil and criminal penalties. The term ``knowing'' includes not only actual knowledge but also constructive knowledge, i.e., knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know that the worker is unauthorized.

Steps/Safe Harbors employers should take upon receipt of a no-match letter

A "no-match" letter from SSA should not be ignored. Here are some measures employers should take if they get one:

1) verify within 30 days that the mismatch was not the result of a record-keeping error on the employer's part;

2) request that the employee confirm the accuracy of employment records;

3) ask the employee to resolve the issue with SSA;

4) if these steps lead to resolution of the problem, follow instructions on the no-match letter itself to correct information with SSA and retain a record of the verification with SSA; and

5) where the information could not be corrected, complete a new I-9 form without using the questionable Social Security number and instead use documentation presented by the employee that conforms to the I-9 document identity requirements and includes a photograph and other biographic data.

We will provide additional information about these steps once the final rule is published in the Federal Register.

The new rule provides that employers unable to confirm employment through these procedures risk legal liability by knowingly continuing to employ unauthorized persons. However, the final rule points out that an employer should not assume that the mismatch is the result of any wrongdoing on the part of the employee. It emphasizes the need to go through the Safe Harbor procedures we have outlined rather than simply terminating a listed employee.

Other Immigration and Workforce Enforcement Measures

There are other, related actions anticipated as a result of the Government's announcement. Here is a summary:

  1. DHS is to issue a proposed rule requiring all federal contractors to participate in the agency's electronic employment verification system, now called E-Verify (a re-branding of the voluntary Basic Pilot program now used by approximately 19,000 employers);
  2. DHS will publish a regulation reducing the number of I-9 acceptable documents to manageable levels to avoid confusion;
  3. DHS will raise civil fines imposed on employers who knowingly hire illegal immigrants by approximately 25%;
  4. The Administration is continuing to expand criminal investigations against employers who knowingly hire large numbers of illegal aliens;
  5. The Administration will help States make greater use of E-Verify;
  6. The Administration will seek voluntary State partners willing to share their DMV photos and records with E-Verify;
  7. To speed up the H-2B visa application process, DOL will issue regulations streamlining the H-2B program for non-agricultural seasonal workers by moving from a government-certified system to an employer-attestation system akin to the PERM system that has reduced backlogs in other areas; and
  8. DHS will extend the visa term for professional TN workers from Canada and Mexico under NAFTA from one year to three years to attract more of these talented workers to the U.S.

Update

On August 31, 2007, Judge Maxine Chesney of the U.S. District Court for the Northern District of California granted a temporary restraining order ("TRO"), in a case brought by AFL-CIO, enjoining the Department of Homeland Security from implementing the "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" rule and from sending to employers the Social Security Administration no-match letter packet that includes the Department of Homeland Security guidance letter on the Safe-Harbor rule. Oral argument on whether the TRO should be converted into a preliminary injunction is scheduled for October 1, 2007. Pending a resolution of this lawsuit, employers should consult with immigration counsel regarding how to handle any Social Security Number discrepancies that come to light.

Further information is available from a member of our Immigration Practice Group.

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