In recent years, the Social Security Administration (SSA) has contributed to the anxiety of employers and foreign nationals with its "No-Match" letters. The SSA annually reviews W-2 forms and credits Social Security earnings to workers. If a name and a Social Security Number (SSN) on a W-2 do not match SSA records, the SSA often sends a letter to advise the employer of the problem.
A few months ago, in an effort to alleviate confusion over how employers should respond to these "No-Match" letters, U.S. Immigration and Customs Enforcement (ICE) published regulatory guidance that outlined "safe harbor" procedures for employers that receive "No-Match" letters. The future of this regulation is now uncertain.
A Court in California recently issued a preliminary injunction in AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. 07-CV-4472 CRB), that prevented DHS and SSA from sending the 2007 SSA mismatch letters they had prepared for over 140,000 employers. Last week, ICE filed a motion to postpone further proceedings in the case so that it could republish its regulation in a manner that would resolve the Court's concerns.
The regulation provided two scenarios that could lead to a finding of constructive knowledge (i.e., a determination that an employer is knowingly employing illegal workers). These scenarios involve an employer's failure to take reasonable steps in response to either of two events:
- The employer receives written notice from the SSA that the combination of name and social security account number submitted to SSA for an employee does not match agency records; or
- The employer receives written notice from the DHS that the immigration status or employment-authorization documentation presented or referenced by the employee in completing Form I-9 was not assigned to the employee according to DHS records.
The rule specified "safe harbor" procedures for employers that received mismatch letters. By taking steps in a timely fashion, as outlined in the regulation, an employer could avoid a finding that the employer had constructive knowledge that the affected employee was not authorized to work in the United States.
The safe-harbor procedures included attempting to resolve the mismatch within 30 days of receiving the letter and, if the discrepancy could not be resolved within 90 days of receiving the letter, re-verifying the employee's identity and employment authorization through a specified process.
Meanwhile, even though ICE is having legal problems with its new regulation, the agency has continued to conduct raids of worksites with alleged unauthorized workers and highlights its activities on its website: http://www.ice.gov/pi/investigations/worksite/newsreleases.htm.
It is critical, therefore, that employers take steps to establish appropriate I-9 compliance programs and react appropriately when they receive information that would indicate that some of its workforce is not authorized to work in the United States.
