Legal Updates
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Winter 2008
Recent Developments in Immigration Law: Part 2
By Debra Auerbach Clephane,Vercruysse, Murray & Calzone, P.C.
Presented by the Section’s International Employment Law & Immigration Committee
Year 2007, in particular, saw several significant policy shifts in immigration law. This article is the second in a two-part series highlighting the major events in immigration law that took place during 2007.
Social Security No-Match Letters and I-9 Enforcement
As mentioned in the Fall Issue, the Department of Homeland Security ("DHS") published new rules setting forth an employer’s responsibilities regarding employment verification and Form I-9 compliance, including employer responsibility upon receipt of a Social Security Administration
("SSA") no-match letter. Although the new regulations were scheduled to go into effect on September 14, 2007, a U.S. District Court Judge in the Northern District of California issued a nationwide temporary restraining order enjoining the federal government from implementing the final rule. Thereafter, a hearing was held, and the U.S. District Court for the Northern District of California granted the DHS’ motion to stay proceedings until March 1, 2008, pending a new rulemaking effort which the DHS maintains will address the court’s concerns with its regulation on SSA no-match letters.1
Overview of Employment Verification and Form I-9 Compliance Under IRCA and IIRIRA
The Immigration Reform and Control Act ("IRCA") was enacted to address concerns regarding illegal immigration to the United States. Congress identified that a major reason for illegal immigration was the prospect of U.S. employment and, through IRCA, Congress believed that it could reduce the flow of illegal immigration by placing requirements on U.S. employers to check the employment eligibility and identity of employees. The Form I-9, Employment Eligibility Verification, was thus developed. A principal aim of IRCA is employer sanctions, which can be imposed on employers who hire, employ, or continue to employ an individual who does not have authorization to work in the United States.
Another piece of major I-9-related legislation, the Illegal Immigration Reform and Immigrant Responsibility Act, ("IIRIRA"), was enacted in 1996. Th rough IIRIRA, Congress reduced the list of acceptable documents to establish identity and employment eligibility. In addition, the IIRIRA made it slightly more diffi cult to establish a claim of discrimination in hiring against an employer who asked for more or specific documents. However, IRCA still requires all employers who employ workers in the U.S. to verify the employment eligibility of all workers hired after November 6, 1986.
In order to prove employment identity and employment eligibility, an employee must complete Section 1 of Form I-9 at the time of hire. The purpose of Section 1 is to document the employee’s attestation, under penalty of perjury, that he/she is eligible to work in the U.S. An employee must present original documentation that establishes identity and employment eligibility within three business days of the date that employment begins.2 An employer must review the original employment authorization and identity documentation presented by the employee, and record the information in Section 2 of the Form I-9.
An employer may not request certain types of documentation; it is the employee’s choice which documents to present to the employer. The employee may present documents listed on the reverse side of Form I-9, to include either: (1) one List A document (documents that establish both identity and employment eligibility) or (2) one List B (identity) document and one List C (employment eligibility) document.
If the employee documents appear to be genuine and representative of the employee’s true identity, the employer may not refuse them or request more or additional documentation. An employer who does so may risk a violation of the anti-discrimination provisions of IRCA. If, however, the documents that are presented appear to be forged, altered, or not representative of the individual, then the employer is obligated to inquire further.
The New DHS Regulations and No-Match Letters
No-match letters are sent by the SSA when W-2s provided by employers contain combinations of employee names and social security numbers that do not match agency records. While this can be the result of clerical errors and name changes, it can also be caused by an alien not authorized to work in the United States using either a false social security number or one assigned to someone else. Immigration and Customs Enforcement ("ICE") can also send such a letter following the audit of an employer’s Forms I-9 where it cannot be confi rmed that an immigration status document or an employment authorization document used by the employee was actually assigned to that person.
The new DHS regulations set forth an employer’s responsibilities upon the receipt of a no-match letter, and significantly amend the definition of "knowing" employment of unauthorized workers that existed under prior DHS regulation. Under these new regulations, an employer in receipt of a nomatch letter must demonstrate that it is taking reasonable steps to investigate and correct the problem. If this is not done, DHS can assess increased monetary penalties by alleging that, based upon the totality of the circumstances, an employer had constructive knowledge that it was employing an alien not authorized to work in the United States. Deliberately failing to investigate suspicious circumstances can impute knowledge of a violation, and thus constitute constructive knowledge. Two factual circumstances where this can occur are explicitly set forth:
- written notice from SSA that the combination of name and social security number submitted for an employee do not match agency records; and
- written notice from the DHS that the immigration status or employment authorization document used by an employee for the Form I-9 was assigned to another person, or that there is no agency record that the document was assigned to anyone.
Safe Harbor "Reasonable Steps" The regulation describes steps that an employer might take after receiving a no-match letter that the DHS considers reasonable. By taking these steps in a timely fashion, an employer would avoid the risk that DHS may find, based on the totality of circumstances present in a particular case, that the employer had constructive knowledge that an employee was not authorized to work in the United States. The steps that a reasonable employer may take can include one or more of the following:
Review of Employer Records. It is reasonable that an employer would check its records promptly after receiving a no-match letter, to determine whether the discrepancy results from a typographical, transcribing, or similar clerical error in the employer’s records or in its communications to SSA or DHS. If there is such an error, the employer would correct its records, inform the relevant agencies, and verify that the name and number, as corrected, match the agency records. Thus, the employer can verify with the relevant agency that the discrepancy has been resolved. The employer should make a record of the manner, date, and time of the verification. Under the new rule, this action should be completed within 30 days of receipt of the no-match letter.
Contact the Employee. If the employer’s records are accurate, the reasonable employer would promptly request the employee to confirm that the employer’s records are correct. If they are not correct, the employer should take actions needed to correct them and inform the relevant agencies. If the employee states that the employer’s records are correct, the reasonable employer would ask the employee to pursue the matter personally with the relevant agency, either by visiting a local SSA office and bringing original documents or certified copies of documents which prove that the information is accurate, or by mailing those items to the SSA office, if this is permitted. The DHS expects that these steps should be completed within 30 days of receipt of the no-match letter.
Unresolved Discrepancies. The new regulations also set forth a verification procedure that the employer may follow if the discrepancy is not resolved within 93 days of an employer’s receipt of a no-match letter. This procedure is intended to verify, or fail to verify, the employee’s identity and work authorization. The procedure involves the employer and employee completing a new Form I-9, using the same procedures as if the employee were newly hired. The procedure may be restricted by the new regulations. For example, neither a document containing a Social Security number of alien number that is the subject of the no-match letter, nor a receipt for an application for a replacement of such a document, may be used to establish employment authorization or identity or both. Also, a document used to establish identity must contain a photograph.
If the discrepancy that was identified in the no-match letter remains unresolved, and if the employee’s identity and work authorization cannot be verified using a reasonable verification procedure, then the employer must choose between taking action to terminate the employee or facing the risk that the DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and violated applicable labor laws by continuing the employment.
It is important to realize that the "safe harbor" procedures, however, offer no protection from a finding that an employer had actual, as opposed to constructive, knowledge that an employee was an unauthorized alien (although the government retains the burden of proof on this issue). Even if no immigration violation is found, significant monetary penalties can be incurred. Finally, employers should understand that resolving a discrepancy on a document used to support a Form I-9 does not, in and of itself, conclusively prove that a particular employee is authorized to work in the United States.