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Immigration News - August 10, 2007

August 10, 2007

By The Immigration Practice Group

*DHS Finalizes Social Security No-Match Regulations*SAVE THE DATE -- Important Immigration Seminar on September 26 & 27

DHS Finalizes Social Security No-Match Regulations

The Department of Homeland Security (DHS) announced today that it had finalized regulations that will impact employers responsibilities in verifying workers employment authorization. The rule outlines a series of steps that employers can take in response to a notice from the Social Security Administration (SSA) or DHS that an employees name and social security number or other employment authorization documents do not match government records. Employers who fail to take these steps may be deemed to have constructive knowledge that an employee does not have employment authorization. The final regulation, entitled Safe Harbor Procedures for Employers who Receive a No-Match Letter, will likely be published early next week in the Federal Register. The final rule will go into effect 30 days after the date of publication. The final regulation is largely unchanged from the proposed regulations, although DHS did expand the timeframes for completion of a number of the steps outlined for resolving no-match discrepancies.

Summary of the Rule

SSA regularly mails letters to employers when the information in its databases does not match the name or social security number for particular employees as reported on earnings reports that the employer has filed with the agency. DHS also notifies employers in the course of an I-9 audit if the immigration status or the employment authorization documentation presented by the employee in completing the I-9 form at the time of hire was not assigned to the employee according to DHS records. The regulation amends the current definition of knowing to provide that employers who receive these notices from SSA or DHS may be deemed to have constructive knowledge that the individual who is the subject of the notice is unauthorized to work in the U.S. The rule also provides a safe harbor from penalties to employers who take specific actions following the receipt of such notifications.

The final rule provides the following steps for employers to follow upon receipt of a no-match letter from SSA:

  1. Within 30 days of receipt of the no-match letter: The employer must check its records to determine whether the discrepancy results from a typographical, transcription or similar clerical error. If the discrepancy is caused by such an error the employer must correct the error with SSA and verify that the employees name and social security number now match the agencys records. Employers are advised to make a record of the manner, date, and time of such verification and retain the record with the employees I-9 form. If the discrepancy was not caused by an error in the employers own records, the employer should promptly confirm with the employee that the name and social security number in the employers records are correct. If the employee indicates that the employers records are incorrect, then the employer should correct its records and verify that the employees name and social security number now match SSAs records. If the employee confirms that the employers records are correct, the employer should promptly request that the employee resolve the discrepancy with SSA.

  2. Within 90 days of receipt of the no-match letter: The employee should be advised that he or she must resolve the discrepancy with SSA within ninety days of the date the employer received the notice from SSA.

  3. Within 93 days of receipt of the no-match letter: If the employee is unable to resolve the discrepancy with SSA within ninety days of receipt of the notice, the employer must again verify the employees employment authorization and identity by completing a new I-9 form. The same procedures should be used to complete the new I-9 form as were used when the original I-9 form was completed at the time of hire, with certain exceptions. The employee must complete section one and the employer must complete section two within ninety-three days of the employer's receipt of the written notice from SSA. The employer cannot accept any document that contains a disputed social security account number or any receipt for the replacement of such a document, 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 work authorization. The newly completed I-9 form should be retained with the prior I-9 form(s).

If at the end of this process the employees work eligibility cannot be reverified, the employer will need to terminate the employment of the worker or risk the possibility that DHS may seek to impose penalties on the employer for knowingly employing an unauthorized alien in violation of the law.

The regulation also provides that an employer may be deemed to have constructive knowledge if the employer fails to take reasonable steps after receiving a request from an employee to file a labor certification or an employment-based visa petition. The rule does not provide any specific procedures for employers to follow in this instance. The mere fact that an employee currently in nonimmigrant status requests an employer to sponsor him or her for lawful permanent residence should not be cause for questioning his or her employment eligibility. However, a request for sponsorship should raise questions where an employee has previously indicated on the I-9 form that he or she was a lawful permanent resident or U.S. citizen.

Given the marked increase in worksite-related enforcement by DHS, it is critical that employers (particularly those employers who have previously received no-match letters regarding their employees) ensure that they include thorough procedures to follow up promptly and to resolve no-match letter issues, as part of their overall I-9 compliance practices. Moreover, compliance with the safe harbor process described above can become quite complex as individual circumstances vary. With the publication of the final rule, we expect that DHS will take even more aggressive steps against employers whom DHS considers not to have followed up appropriately after receiving social security no-match letters.

Employers must also be alert to social security no-match letter issues in the merger and acquisition context, and should evaluate possible immigration compliance issues as a regular part of the due diligence process.

The Administration Announces Additional Immigration Initiatives

In addition to the no-match regulation, the Administration announced a range of additional immigration initiatives today, most enforcement-related. With regard to employment verification and worksite enforcement, DHS announced plans to:

  1. Issue a regulation reducing the number of documents that employers can accept as evidence of identity and work authorization when completing I-9 forms;

  2. Issue a regulation increasing the levels of civil fines the agency can impose for I-9 violations by approximately 25 percent;

  3. Continue to expand its use of criminal prosecutions against employers whom DHS believes have knowingly employed unauthorized workers; and

  4. Issue regulations to require all federal contractors and vendors to use the E-Verify electronic verification system (formerly called the Basic Pilot) to verify the employment eligibility of their employees.

The Administration also announced several initiatives that will affect travel to the United States. For example, DHS announced that it plans to expand exit requirements for nonimmigrants at both air and land ports, and will require all travelers to the U.S., including those at land border ports of entry, to use passports or other similarly secure documents in order to obtain admission. The Administration also announced several initiatives relating to certain immigration benefits programs. These include reforms to streamline the processing of H-2A and H-2B temporary workers; increasing the duration of TN visas from one to three years; and a study by DHS and the Department of Labor of potential administrative reforms to visa programs for highly skilled workers.

SAVE THE DATE -- Important Immigration Seminar on September 26 & 27

The Global Personnel Alliance (GPA) and Paul Hastings will sponsor a seminar on Global Immigration Issues , to be held in Washington, D.C. on September 26 & 27. The seminar will focus on the major developments over the past year and will feature speakers from Capitol Hill, the Department of Labor and the Department of Homeland Security. Registration information will be distributed next week.