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Charles S. Plumb and Sam R. Fulkerson, Editors
McAfee & Taft
Vol. 15, No. 10
October 2007
ILLEGAL IMMIGRANTS
DHS issues safe-harbor regulations for no-match letters, but lawsuit slows reforms
Michael C. Redman
As you know all too well, the Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for you to hire or continue to employ any person you "know" is an unauthorized alien. If you "knowingly" hire or continue to employ someone who isn't an
authorized worker, you could face civil and criminal penalties. That begs the question "When do you 'know' that a person isn't authorized to work?"
To borrow (and revise) a phrase from former Secretary of Defense Donald Rumsfeld: There are those things that you know; there are those things that you know that you don't know; there are those things that you don't know but should have known.
Regulations issued by the U.S. Department of Homeland Security (DHS) provide you with a safe harbor from a claim that you should have known that you employed an unauthorized alien.
What is an 'unauthorized alien'?
There are two types of unauthorized aliens. The first type is someone who isn't admitted to the United States for permanent residence ― what is commonly referred to as an illegal alien or immigrant alien. The second type of unauthorized alien
is one who is in the country lawfully but isn't authorized to work in the job being sought. That category is also known as "nonimmigrant aliens."
How do you 'know' whether a person is an unauthorized alien?
Federal regulations define the term "knowingly" to include not only actual knowledge but also knowledge that may fairly be inferred from certain facts and circumstances that would lead a person to know about a certain condition through the exercise
of reasonable care. That is called "constructive knowledge." For liability purposes, constructive knowledge is no different from actual knowledge.
IRCA requires every employer to verify each employee's (1) authorization to work and (2) identity. That verification is made on the employment eligibility verification form, commonly known as the Form I-9. If you fail to complete or improperly
complete the I-9, you are deemed to have constructive knowledge of the person's employment status. Another form of constructive knowledge occurs if you receive a "no-match" letter from either the Social Security Administration (SSA) or DHS.
No-match letters are considered 'constructive knowledge'
Let's assume that one of your employees hasn't given you accurate information about his name or social security number. At the end of the year, when you send his wage information to the SSA, a red flag will go up. If that happens, you'll receive an
"employer correction request" letter from the SSA notifying you that the name or social security number that your employee provided doesn't match the information on file with the agency. It's commonly referred to as a "no-match letter."
Additionally, U.S. Immigration and Customs Enforcement (ICE) will send a similar letter, called a "notice of suspect documents," if the immigration status or employment-authorization documentation presented in completing the I-9 doesn't match DHS'
records.
Once you receive one of those letters, you are considered to have "constructive knowledge" that you are employing an unauthorized alien.
AFL-CIO files lawsuit
Even though you have constructive knowledge that one of your employees may not be authorized to work, you can take steps to mitigate liability. On September 14, new regulations went into effect that describe your obligations when you receive a
no-match letter from either the SSA or DHS.
The AFL-CIO is leading a campaign against the no-match letters. The labor organization has filed a lawsuit against the U.S. government that seeks to prevent the letters, saying they threaten to violate workers' rights and place unfair burdens on
employers. A U.S. district court judge has issued a temporary restraining order prohibiting the letters from going out until the court has time to address the matter.
What to do if you receive a no-match letter
If the letters go through and you receive one, DHS has identified the following safe-harbor steps you can take to ensure that the letter won't be used as part of any allegation that you had constructive knowledge that your employee wasn't authorized
to work in the United States:
- Within 30 days of receiving the letter, you should check your records to determine that the problem wasn't caused by a typographical, transcription, or clerical error in the records or the communication to the SSA or DHS. If there is such
an error, you should correct it and notify the proper agencies.
- If no such error is found, you should ask the employee to confirm that all information in your records is correct. If the records aren't correct, you should make the corrections and
notify the proper agencies. If the employee confirms that the information is correct, you should ask her to pursue the matter personally with the proper agency. That, too, should be done within 30 days of when you received the letter.
If the discrepancy isn't resolved within 90 days from the receipt of the no-match letter, you and the employee must complete a new I-9, using the same procedures as if the employee was a new hire. That I-9 must be completed within 93 days of receipt
of the no-match letter.
If the discrepancy in the no-match letter isn't resolved and the employee's identity and work authorization can't be verified using one of the verification procedures in the regulations, you must choose between terminating the individual or risking
that DHS will claim that you had constructive knowledge that she was an unauthorized alien.
A discrepancy will be considered resolved only if you verify with (1) the SSA that the employee's name matches the number assigned to that name in the agency's records or (2) DHS that its records indicate that the immigration status document or
employment authorization document was assigned to the employee.
What are acceptable employment verification procedures?
In addition to the above, you can and should take affirmative steps to ensure that you don't employ aliens who aren't authorized to work in the United States. Available resources include:
E-Verify is currently the best means available to verify electronically the employment eligibility of your newly hired employees.
E-Verify virtually eliminates social security mismatch letters and improves the accuracy of wage and tax reporting for employees. The program, however, verifies only a new hire's employment eligibility, not his immigration status.
Things you should remember
If the AFL-CIO's lawsuit fizzles and you receive a no-match letter from either the SSA or DHS, you'll have 30 days to investigate the discrepancy. If the discrepancy isn't resolved within 90 days, you must submit another I-9 within 93 days of the
no-match letter. If the issue remains unresolved, you must either fire the individual or risk the allegation you knowingly employed an unauthorized alien.
The author may be reached at mredman@dsda.com.
Copyright 2007 M. Lee Smith Publishers LLC
OKLAHOMA EMPLOYMENT LAW LETTER does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the OKLAHOMA EMPLOYMENT LAW LETTER seeks to provide information about current developments in Oklahoma
employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice.
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