PUBLICATIONS

Increased Workplace Immigration Enforcement on the Horizon

8/28/2007

The U.S. Department of Homeland Security (DHS) has announced that it intends to take a new and tougher approach aimed at enforcing immigration policies in the workplace. This announcement follows the Department’s August 10, 2007 statement that it has finalized regulations regarding employers’ responses to so-called “No-Match” letters originated by the Social Security Administration (SSA). DHS has acknowledged that the final regulations and the Department’s new workplace-focused immigration enforcement policies respond directly to, and attempt to implement portions of, the White House’s failed immigration reform legislation. September 5, Update: However, a federal judge has temporarily halted the implementation of the tougher standards by issuing a temporary restraining order preventing the SSA from sending out the first wave of “No-Match” letters on September 4, and implementation of the final DHS regulations, scheduled for September 14. A suit brought by the AFL-CIO challenged the Department’s authority to implement the workplace enforcement measures. In issuing a temporary restraining order, the U.S. District Court for the Northern District of California found that “Plaintiffs have raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with statue and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration.” AFL-CIO v. Chertoff, N.D. Cal., No. 07-4472, order 8/31/07. A hearing on a preliminary injunction in the case has been set for October 1.

SSA No-Match letters notify employers that an employee’s name, social security number, or other information do not match government records. The final regulations indicate the Department’s intent to pursue legal action against employers that have “constructive knowledge” that an employee is not legally authorized to work in the United States. However, the regulations also describe how employers can obtain a “safe-harbor” from prosecution by following the steps briefly outlined below:

Step 1: 30 Days: Within 30 days of receiving a No-Match letter from the SSA, an employer should check its records to determine whether typographical or other errors in either the employer’s records or in its communications with the SSA could account for the discrepancies. Any such errors must then be corrected, and verification obtained from the SSA. If the problem does not arise from the employer’s records, the employee (a) should be requested to confirm that his or her name and social security number are correctly reflected, (b) should be asked to resolve any discrepancy promptly and directly with the SSA, and (c) should be advised that the discrepancy must be resolved within 90 days of the date the employer received the No-Match letter.

Step 2: 90 Days: An employer should have a “tickler” in place to assure that any discrepancy has been resolved within 90 days of the employer’s receipt of the No-Match letter. Any unresolved discrepancies remaining at the 90-day point require immediate action.

Step 3: 93 days: If the discrepancies cannot be corrected within 90 days, the regulations provide that the employer has three additional days to re-verify the employee’s work eligibility and identity. A new Form I-9 should be completed as if the employee were newly hired, with the following additional restrictions:

Neither the employee’s employment authorization nor identity may be proved with any document containing a social security number or alien number that was the subject of a No-Match letter.

The employee’s identity (or both identity and employment authorization) may be established only with a document that includes a photograph of the employee.

If the employer and the employee cannot complete a new Form I-9 under these restrictions, the employer may risk liability for legal penalties for “knowingly” employing an unauthorized worker, and termination of employment may be the only way to avoid legal action by DHS.

In the wake of the Department’s announced intent to increase workplace-related immigration enforcement, employers should conduct a self-audit to ensure Form I-9 compliance and compliance with immigration laws in hiring procedures. Employers should also prepare to resolve No-Match letter issues by working with employment counsel to create a detailed, written “safe harbor” process that meets the standards of the final regulations. Documenting employer action at each step of the safe harbor process will be an important part of assuring protection from legal action by the DHS. Finally, employers should continue to administer policies and procedures in a race- and national origin-neutral manner, to minimize the risk of creating unlawful discrimination claims as a “side-effect” of increased immigration law compliance efforts.

We expect in the coming months to remain attentive to the scope of increased workplace enforcement by DHS and how these new final regulations are being interpreted and applied.