Immigration Practice - ICE Issues Final Rule for SSA No-Match Letter "Safe Harbor"
On
Friday, August 10, 2007, ICE issued its final rule concerning how employers should respond to SSA no-match letters if they do not want the no-match letters held against them as evidence of constructive knowledge that the employee
was unauthorized to work in the U.S. As noted in past "E-Alerts", by denying “safe harbor” to employers who do not meet the terms of the new rule, ICE elevates receipt of a no-match letter to evidence of constructive
knowledge of unauthorized employment. The new rule provides the same no-match response procedures outlined in last summer's proposed rule, and therefore creates a difficult employment decision for employers when the employee
cannot straighten things out with SSA in the allotted time. However, the timelines for completing the procedures have been extended in response to the employer community's comments/complaints to the proposed regulations. The
14 day/60 day periods have been enlarged to 30 day/90 day milestones. If the mismatch is not resolved within 90 days, the employer may re-I-9 the employee within three days. If the I-9 cannot be re-verified by day 93, the employee
may be discharged or if retained, the employer loses the safe harbor defense. ICE continues its attempts to obtain a change in law from Congress allowing it access to the SSA database.
According to ICE, all SSA mismatch letters will now include a letter from ICE reminding employers how to comply with the safe harbor provisions. Under current law, at least, ICE will not be provided the names of employers or individuals
receiving no-match letters.
An interesting 'Fact Sheet' regarding ICE work-site enforcement is located at
http://www.ice.gov/pi/news/factsheets/worksite.htm
The new rule and comment may be found at http://www.ice.gov/doclib/finalsafe.pdf
A summary introduction for employers to the new rule is located at http://www.ice.gov/partners/employers/safeharbor/index.htm
An extensive list of questions and answers (FAQ’s) may be found at the “Safe Harbor Information Center" at http://faq.ice.gov/cgi-bin/ice_faq.cfg/php/enduser/std_alp.php?p_sid=6IbfqOIi
A few points of government emphasis justify particular employer attention. ICE has decided and states expressly that civil fines serve no deterrent purpose so their main focus is on seeking criminal fines, forfeitures and jail time
for employers. ICE now provides a new "hotline" for reporting of illegal aliens. The old "Basic Pilot" program for electronic employee verification system has been renamed to "E-Verify" and is touted
as the best method available for employers to have peace of mind over new hires and a secure work force. Use of "E-Verify" does not, however, relieve employers from the new rules requirements and may not be used to circumvent
its provisions for purposes of the safe harbor.
With this new rule and the extensive accompanying materials ICE is seeking to build on the momentum developed over the last 16 months of unprecedented work-site enforcement to further increase employer attention and tension regarding
the subject. Undoubtedly the content of this roll-out will be utilized against employers who do not acknowledge it or who disagree with its extensive interpretations of law. Employers must determine whether compliance with the safe
harbor requirements will benefit them in their specific circumstances upon receipt of the next round of SSA no-match letters, and for employees unable to clear up SSN problems within the time allotted under the rule, whether to re-I-9
under the rule and ultimately, whether to terminate or continue the employment of affected employees.