On August 15, 2007, U.S. Immigration and Customs Enforcement (“ICE”) of the Department of Homeland Security ("DHS") issued final rules concerning employers’ obligations to investigate and respond to social security mismatch letters and DHS notification regarding employee work authorization and documentation.
The rule provides an additional enforcement tool for ICE insofar as it creates new affirmative obligations on the part of employers to actively investigate mismatch situations, or risk a finding that the employer knowingly employed an individual who was not authorized to work in the U.S.
Safe Harbor Provisions
A mismatch letter is a letter sent by the Social Security Administration ("SSA") notifying an employer that names and/or social security numbers submitted by the employer do not match SSA records. The new regulations, effective September 14, 2007, detail a course of action employers must take in response to mismatch letters or other written notice from DHS that the immigration status or employment-authorization documentation presented by an employee in completing Form I-9 was not assigned to the employee according to DHS records. Failure to follow the provisions could result in a finding that the employer knowingly hired or continued to employ an unauthorized alien.
In response to such letters, employers must:
Within 30 days of receipt of the letter from either SSA (no-match letter) or DHS (employment verification), the employer must check its records to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in the employer’s records, or in its communication to SSA or DHS. If there is such an error, the employer must correct the error and notify the agency that the name and number, as corrected, match the agency records.
If Step 1 does not resolve the issue within 30 days of receipt of the letter, the employer should immediately begin Step 2, from which it has up to 90 days from the date of receipt of the letter to complete. The employer should promptly request that the employee confirm that the employer’s records are correct. If the employee states that the employer’s information is not correct, the employer must take actions necessary to correct its records and report the correct information to the relevant agencies. If the employee confirms that the employer’s records are correct, the employer should direct the employee to pursue the matter personally with the relevant agency. If a new SSN is issued, the employer should verify (and document its verification) the correct social security number using the social security verification hotline: 800-772-6270. The mismatch discrepancy is considered resolved only if the employer verifies with SSA or DHS that the employee’s name matches the social security number assigned to that name, or, in the case of DHS, verifies the authorization with DHS that DHS records indicate the immigration status document or employment authorization document was assigned to the employee.
Within 93 days of receipt of the letter, if the issue is not resolved using the steps above, the employer must verify the individual’s identity and work authorization by completing a new I-9 form. The rule gives the employer and employee three days after the 90-day Step 2 period to complete the new I-9 form. In completing the new I-9 form, the employer cannot rely upon any document containing the SSN or alien number that is the subject of the mismatch letter, or any receipt for an application for replacement of such document. Also, no document without a photograph may be used to establish identity (or both identity and employment authorization).
If the discrepancy is not resolved, and if the employee’s identity and work authorization cannot be verified without relying on the disputed number, then the employer must choose between: 1) taking action to terminate the employee; or 2) facing the risk that DHS may find that the employer had knowledge that the employee was an unauthorized alien, and that by continuing unauthorized employment, knowingly violated the law.
Note that employers must apply these procedures uniformly to all of their employees having unresolved mismatch indicators in order to avoid violation of anti-discrimination laws.
While the regulations create a safe harbor for employers who carefully follow the above-listed steps in good faith, employers who fail to take action in response to mismatch letters risk enforcement consequences. Employers who do not follow these investigative steps within the timeframes outlined may risk a finding of knowingly continuing employment of an unauthorized alien, which can carry significant penalties.
Also, while compliance with the safe harbor provision assures that the employer will not be found to have “constructive” knowledge of unauthorized employment, an employer with “actual” knowledge of the illegality of employment is excluded from the safe harbor.
The new rule becomes effective September 14, 2007. The government is expected to announce additional enforcement activities that will supplement the issuance of this final rule. Employers must revisit how they address mismatch letters in order to ensure that they take full advantage of the safe harbor provisions, as appropriate.
For more information, please contact José Olivieri at 414.225.4967, or firstname.lastname@example.org, Kelly M. Fortier at 414.277.3460, or email@example.com, or Elizabeth M. Drew at 414.225.4921, or firstname.lastname@example.org.