The U.S. Department of Homeland Security ("DHS") has issued the final “no-match” regulations (72 Fed. Reg. 45611, August 15, 2007). The regulations, which amend 8 C.F.R. Part 274a, describe the legal obligations of an employer under the Immigration Reform and Control Act of 1986, as amended ("IRCA"), when receiving a “no-match” letter from the Social Security Administration ("SSA") or a letter regarding employment verification forms from DHS. The final regulations also describe “safe harbor” procedures that the employer can follow in response to receiving such letter to ensure that DHS will not use the letter to allege that the employer had constructive knowledge that the employee referred to in the letter was not authorized to work in the United States. The new regulations will become effective on September 14, 2007.
The regulations finally answer the question: What should an employer do when it receives an SSA or DHS "no match" letter?
Within 30 days of receipt of the notification from the SSA:
The employer must check its records to determine whether the discrepancy was caused by a clerical error, correct the error with the SSA, and verify that the corrected name and social security number now match the 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 corrections 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 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.
If employer receives 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 SSA or DHS:
If the discrepancy cannot be resolved with either the 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 the 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 United States.
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.
For further information on the final "No Match" Regulations or for any immigration questions, please contact Marcy Stras at mstras@bakerlaw.com or 202.861.1676.
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