Immigration Alert
Employers Between a Rock and a Hard Place
By Kathleen Campbell Walker
On August 10, 2007, Homeland
Security Secretary, Michael
Chertoff, and Commerce Secretary, Carlos
Gutierrez, announced measures to
improve border security and immigration
using existing law. On the same day as
this announcement, the Department of
Homeland Security (“DHS”) issued an
early release of the Final Rule concerning
the creation of safe harbor procedures for
employers who receive a “no match letter”
from the Social Security Administration
(“SSA”) or written notice from DHS that
the immigration status or employment
authorization document presented by an
employee for I-9 purposes is assigned to
another person or there is no agency
record that the document has been
assigned to any person. These regulations provide that a Social
Security no-match letter or DHS notice
can serve as potential constructive knowledge
that an employer might be continuing
to employ an unauthorized worker,
which of course can lead to civil and
sometimes criminal penalties. The regulations
propose a safe harbor procedure so
that employers who comply with the procedures
can insulate themselves from liability
under the Immigration and Nationality
Act (“INA”). These procedures do
not insulate the employer from liability if
they have actual knowledge that a worker
is not authorized to work in the United
States (“U.S.”). They also do not insulate
the employer from potential EEOC violations.
This regulation does not mandate
that any employer terminate an employee
upon receipt of a no-match letter from the
SSA or a notice from the DHS that the
work authorization document presented
for I-9 purposes may not belong to the
employee who presented it. Based on a
delay in publication, now the regulations
became effective September 14, 2007. What should an employer do to utilize
the safe harbor provisions? According to
the regulations, on or after September 9,
2007, when an employer receives a Social
Security no-match letter or a letter from
the DHS questioning the validity of an
employment document presented by an
employee for I-9 purposes, an employer
will be provided a safe harbor option by
this regulation to take in response to
receipt of the communication. The safe
harbor procedure outlined in the regulation
is basically as follows:
- The employer shall promptly “no later
than 30 days after receipt” check its
records to insure that the no match or
DHS error notice was not the result of
a clerical error on the employer’s part.
- If the employer determines that there is
no clerical error within the 30 day time
frame, then the employer must ask the
employee to confirm the accuracy of
the employer’s records.
- If necessary, the employer must ask the
employee to resolve the issue with SSA
or the DHS.
- If the employer is able to successfully
resolve a no match based on a SSA letter,
the employer must make sure to
have followed all the instructions on
the SSA letter. In addition, the
employer should also verify that the
correction was made by SSA using the
Social Security number verification system
(“SSNVS”) administered by the
SSA, and retain a record of the date
and time of the verification completed
by the employer. The SSNVS can be
accessed through: http:\\
www.ssa.gov\employer\ssnv.htm or by
telephone at 1-800-772-6270.
- If none of the previous measures
resolves the matter within 90 days of
receipt of the letter or notice, then the
employer should complete within three
days (if they desire to follow the safe
harbor procedures), a new I-9 form as
if the employee in question were a new
hire, except that no document may be
used to verify the employee’s work
authorization that was questioned by
the SSA letter or by the DHS notice. If
the employer is still unable to confirm
whether or not the individual is
authorized to work following the procedures,
then the employer does risk
liability under §274(a) of the INA, if
the employer continues to allow the
employee to work for the employer.
Please note, however, that this provision
does not mandate that the
employee be terminated. The employer
should obtain legal counsel to provide
an assessment of the work authorized
status of the individual, if the employer
is faced with a decision of termination
versus continuation of work in order to
document the I-9 file.
Please note that there are many reasons
to receive a Social Security no-match letter
including transcription errors, name changes
due to marriages not reported to the SSA,
and errors within the SSA records. The
same comment holds true for DHS records.
Thus, employers must not assume that an
SSA no match letter or DHS notice is a
result of any wrong doing on the part of an
employee. Further, an employer who takes
action against an employee based on just a
no match letter or DHS notice may in fact
be subject to discrimination charges as well
as wrongful termination allegations. The DHS also provided public notice
today that they have renamed their basic
pilot program—the E-Verify program.
Information on the E-Verify program may
be obtained at www.dhs.gov\E-Verify. E-
Verify is a partnership program between
the DHS and the SSA. U.S. Citizenship
and Immigration Services (“USCIS”) oversees
this program. Although E-Verify is
not required for determining work eligibility
of employees, based on the on-going
increase in enforcement efforts across the
nation and the continuing exposure of
management to criminal charges based on
patterns and practices of hiring undocumented
workers, it is advisable for
employers to consider enrolling in the E-Verify program for new hires. In addition, on August 31, 2007, the E-
Verify program launched a new photo
screening tool. This feature will be a first
step in providing employers with tools to
detect identity theft. This photo screening
feature though will only allow employers
to check the photos of new hires’ employment
authorization documents or permanent
resident cards (green cards). Using
this system, the employer will be able to
compare identical photos, one from the
card presented by the employee to the
card image in the USCIS database. Please
note that employers still cannot mandate
that an employee present a specific document
under the I-9 regulations to establish
identity or work authorization. Thus, this
biometric tool is only useful if the employee elects to provide either the employment
authorization document or the legal permanent
resident card.
The DHS also announced the
following:
We can expect that the civil penalties
for knowingly hiring undocumented
workers will increase 25% in
the near future. This increase must
go through the notice process in the
Federal Register first. This increase
would impact civil penalties as follows
for offenses occurring post
September 29th, 1999:
First offense (8 CFR
§274a.10(b)(1)(ii)(A)) Now: not less than $275 and not
more than $2,200
Up 25%: not less than $343.75 and
not more than $2,750
Second offense (8 CFR
§274a.10(b)(1)(ii)(B)) Now: not less than $2,200 and not
more than $5,500
Up 25%: not less than $2,750 and
not more than $6,875
Third offense (8 CFR
§274a.10(b)(1)(ii)(C)) Now: not less than $3,300 and not
more than $11,000
Up 25%: not less than $4,125 and more than $13,750
For failing to comply (8 CFR §274a.10(b)(2)): Now: not less than $110 and not more than $1,100 Up 25%: not less than $137.50 and nor more than $1,375.
In addition, employers can expect that the
number of documents used for I-9 identity
and work eligibility verification will be
decreased from the current 29. Employers hopefully can also expect
that the H-2A agricultural seasonal worker
and the H-2B non-agricultural seasonal
worker programs’ processing procedures
will improve Further, in the near future, Trade Nafta
(“TN”) visas for Mexicans, which can be
valid for up to three years, should also be
followed by an ability of the applicant to
be admitted for three years instead of the
current one year period of admission. Kathleen Campbell Walker is currently the
National President of the American Immigration
Lawyers Association, www.aila.org.
She is board certified by the Texas Board of
Legal Specialization in the practice of Immigration
and Nationality Law. Please refer to
her biographical information at:
http://www.kempsmith.com/kathleen_c._walker.html
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