Immigration Practice - Proposed Immigration Regulation Puts Employers in a Pickle
ICE (Immigration and Customs Enforcement, the inland immigration police) has a new regulation pending (read it at
http://a257.g.akamaitech.net/7/257/2422/
01jan20061800/edocket.access.gpo.gov/2006/E6-9303.htm) which directly addresses the issue of employer response to Social Security mismatch letters and the issue of an employer’s
“constructive notice” that an employee is not authorized to work in the U.S. You are aware that the law currently forbids the “knowing” employment of persons unauthorized to work in the
U.S. The proposed regulation seeks to tighten up what the government apparently considers a slack (but from the employer’s standpoint, eminently sensible) response by employers to the issue of knowing employment of unauthorized
employees. In a nutshell, the regulation would elevate a mismatch letter to the level of “constructive notice” that an employee is unauthorized to work in the U.S. unless the employer follows a tedious and burdensome
procedure to avoid that imputation. At best, the procedure will be costly and difficult to follow; at worst, it will place employers in the position of potentially dismissing authorized employees, thus exposing the employer
to discrimination charges.
The proposed regulation details an employer’s obligations in response to a no-match letter from the Social Security Administration (SSA) or a similar notice from the Department of Homeland Security (DHS) and sets out "safe harbor" procedures. The ICE proposal specifies the steps an employer must take that DHS will consider to be a reasonable response to a no-match letter and that will foreclose a DHS allegation under INA section 274A(a)(2) that the employer has constructive knowledge that an employee lacks work authorization. The proposed rule adds two examples of constructive knowledge situations where the employer receives (1) written notice from SSA that the combination of name and SSN submitted for an employee does not match SSA records; and (2) written notice from DHS that documentation presented by the employee in completing Form I-9 is invalid.
The safe harbor procedures are tedious and must be executed within a short time period. An employer would have only 14 days from receipt of the letter to take certain steps to attempt to resolve the discrepancy. First, the employer must determine if the discrepancy resulted from a clerical error in its records or in its communication to the SSA or DHS and, if so, correct the error and verify resolution with the relevant agency. If this first step does not resolve the discrepancy, the employer must confirm its records with the employee, make any necessary corrections, and verify that the discrepancy has been resolved with the relevant agency. If the employee states that the original information is correct, the employer must ask the employee to go to the local SSA office and resolve the matter in person. The discrepancy will only be considered resolved if the employer verifies with SSA or DHS that the employee's name matches in SSA's records a number assigned to that name and that the number is valid for work or is valid for work with DHS authorization (and, with respect to the latter, verifies the authorization with DHS) or that DHS records indicate that the immigration status document or employment authorization document was assigned to the employee.
If the discrepancy is not resolved within 60 days of receiving the no-match letter, the employer must complete a new Form I-9 and the verification must be completed within 63 days of receipt of the no-match letter (i.e., 3 days beyond the 60 days allowed to resolve the discrepancy). However, the employer may not use a document containing the SSN or alien number that is the subject of the no-match letter and no receipt for an application for a replacement of such a document may be used to establish employment authorization or identity. In addition, no document without a photograph may be used to establish identity or employment authorization.
If, after following these procedures, the discrepancies remain, the employer must terminate the employee or risk a finding of constructive knowledge that the employee was unauthorized. The employer, of course, must apply the proposed procedures in accordance with IRCA’s antidiscrimination rules. This makes the procedure essentially mandatory, for if you discharge the person before following the procedure, you could open yourself up for a discrimination suit. If the employer follows these procedures and verifies work authorization, however, the employer will not be considered to have constructive knowledge even if the employee is unauthorized.
The public comment period for this proposed rule expired in August, 2006. Numerous objections were filed to the rule. A common objection was that equating Social Security mismatches to “constructive notice” of lack of work authorization is unfounded because of the numerous things that could account for a mismatch, and because SSNs are not issued or monitored by SSA for work authorization purposes in the first place. As one commentator observed, neither the INA nor IRC requires that a person have a SSN in order to be employed. The time restraints for employer action were also criticized as much too short, especially as employer size increases, because of the sheer workload of performing the safe-harbor acts as to every employee where numerous mismatch letters are received by an employer. This is especially true where employer action requires the cooperation of other federal agencies, like SSA, to take advantage of the safe harbor provision. Further, the absence in the regulation of any immunity from discrimination charges for employers who feel compelled to terminate what later turns out to be an authorized employee has been universally condemned. This aspect of the regulation is perhaps the most unfair to employers because, in its current form, the proposal places them in the terrible position of having to dismiss workers to avoid a “constructive knowledge” finding if the safe harbor cannot be achieved in time, but then being subject to a discrimination claim if the dismissed worker is in fact authorized. Whether ICE/DHS take any of the criticisms of the proposed rule to heart in their formulation of a final rule remains to be seen; however, it is essential that employers give serious consideration to this rule before it is issued in an effective version in order that they may be prepared to respond to new responsibilities, or at least not be caught unaware.