Liability for Employers who Receive No-Match Letters
Posted Aug 17, 2007
The U.S. Immigration and Customs Enforcement (ICE), which is an agency within the U.S. Department of Homeland Security (DHS), issued an updated regulation during the week on August 15, 2007, related to the hiring of undocumented workers. The regulation includes new safe-harbor timeframes for employers to verify certain information pertaining to the ability of an employee to work legally in the United States. This regulation is particularly important in light of increased ICE workplace enforcement efforts, as it expands and provides for an employer's constructive knowledge and penalties for violations of employment laws.
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Employers' Deemed Constructive Knowledge
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An employer is subject to various penalties if s/he knows that an employee does not have proper employment authorization. This includes "constructive knowledge" (i.e. indirect or circumstantial knowledge). There are three situations in which an employer is deemed to have constructive knowledge, yet be failing to take appropriate steps, that would have adverse repercussions for the employer. First, when the employer is requested by an employee to sponsor his/her labor certification or immigration petition. Second, when the employer receives a letter from the Social Security Administration (SSA) stating that the information submitted for an employee does not match SSA records. Third, when the employer receives a DHS notice that the immigration document used by the employer for verification purposes while completing Form I-9 does not match the DHS records. It should be noted that "no match" letters can be issued for reasons that are not immigration related.
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New Rule Provides Timeframes for Safe Harbors to Verify Discrepancies
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The rule includes "safe harbor" procedures that employers should follow in order to avoid liability. The new procedures include timeframes considered reasonable for an employer to take in order to verify the information received from the SSA or the DHS. If the question of proper employment authorization is not resolved within the prescribed time of about 90 days, the employer has to complete a new I-9 employment verification form and then may have to choose between terminating the employee and risking the consequences of having constructive knowledge. There is no safe harbor available for an employer whose employee has been sponsored for labor certification or an immigration petition, if the employee does not have legal status.
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Conclusion
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The new ICE regulations are supposed to help employers avoid liability by providing timeframes to verify the status of their employees before taking any action. This will also give some employees sufficient warning of having to obtain valid employment authorization or provide explanations for any discrepancies in their documentation. Employers need to be careful in their hiring practices, to avoid discrimination, as well as avoiding immigration violations. Hiring a competent and experienced immigration or employment advisor and/or attorney is wise in regard to lawful hiring practices.
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