Special Report: New DHS Immigration Enforcement Policy, August 2007
On Friday, Aug. 10, the Department of Homeland Security (DHS) announced a package
of 26 new immigration enforcement measures. Among the initiatives is a finalized
version of its proposed rule "Safe Harbor Procedures for Employers Who Receive a
No-Match Letter." Originally proposed in the June 14, 2006, edition of the
Federal
Register, the rule would alter existing regulations addressing how employers
are expected to respond to "no-match" letters from the Social Security Administration
(SSA) or DHS.
The new regulation signals DHS' intention to prosecute employers for immigration
violations through gaining greater access to SSA records and failure of employers
to terminate employees who are the subjects of unresolved SSA no-match letters.
The proposed regulation would, in effect, require employers to terminate workers
who are the subjects of no-match letters if the discrepancy is not resolved within
93 days after an employer's receipt of a no-match letter.
The rule is expected to be published in the
Federal Register on Aug. 15 and
will become effective 30 days after publication. The rule sets forth the steps employers
should take if they want to avail themselves of the safe harbor procedures upon
receipt of a no-match letter from SSA or DHS.
What is a no-match letter?
When the information contained on a W-2 form does not match SSA's records, SSA issues
a no-match letter so the worker may be properly credited with Social Security earnings.
SSA letters are not intended for immigration enforcement purposes, and SSA data
currently are not shared with DHS. At the present time, federal immigration regulations
do not require employers to take specific actions when they receive SSA no-match
letters. Another type of no-match letter is issued by the U.S. Immigration and Customs
Enforcement (ICE) division of DHS, which verifies the accuracy of information on
I-9 forms. If ICE discovers the immigration-status or employment-authorization documentation
presented or referenced by an employee is inconsistent with the agency's records,
a no-match letter will be sent to the employer indicating the information provided
does not match government records. There can be several causes for a no-match, including
clerical errors; name changes; or submission of information for an immigrant who
is not authorized to work in the U.S. and is using a false Social Security number,
someone else's number or a false immigration registration card ("green card").
Current law
Following enactment in 1986 of the Immigration Reform and Control Act (IRCA), all
U.S. employers are required to verify the identity and employment eligibility of
all new employees, citizens and noncitizens hired to work in the U.S. after Nov.
6, 1986. It is illegal for an employer to hire, recruit or continue to employ an
individual whom the employer knows is an unauthorized alien or if the employer is
found to have "constructive knowledge" of the individual's ineligible work status.
Employers who violate IRCA through paperwork violations or knowingly employ illegal
aliens are subject to civil and criminal penalties, including imprisonment.
Current federal I-9 requirements
The principal mechanism used to verify identity and work eligibility is Form I-9,
Employment Eligibility Verification, now issued by DHS' U.S. Citizenship and Immigration
Services. Federal law requires all employers to complete I-9 forms whenever an employee
is hired or rehired. I-9 requirements apply only to employees; they do not apply
to independent contractors.
Section 1 of Form I-9, titled Employee Information and Verification, is to be completed
and signed by the employee no later than the close of business on the first day
of work. The employer is responsible for ensuring the employee completes Section
1.
Section 2 of Form I-9, titled Employer Review and Verification, is to be completed
and signed by the employer after the employer has reviewed certain prescribed documents
to establish worker identity and eligibility to work in the U.S. Section 2 is to
be completed and signed by the employer no later than the close of business on the
employee's third day of employment. If the employee is being hired for three or
fewer days, the I-9 form must be completed at the time of hire. In Section 2, the
employer identifies the documents that have been examined from the prescribed list
of acceptable documents. The employer is not required to verify the authenticity
of the documents presented but must examine the documents and certify the listed
documents appear to be genuine and pertain to the employee named. If the documents
submitted by the prospective employee have expiration dates, such as an unexpired
employment authorization card, the expiration dates must also be included in Section
2. The employer inserts the date employment began and certifies that, to the best
of the employer's knowledge, the employee is eligible to work in the U.S.
IRCA requires that employers not discriminate against job candidates on the basis
of race, color, national origin or citizenship. Employers who impose citizenship
requirements or give preference to U.S. citizens in hiring or employment opportunities
may be in violation of IRCA. The Immigration and Naturalization Act of 1990 also
prohibits employers from asking for more or different documents than what the prospective
employee submits from the prescribed list of acceptable documents. Employers cannot
require specific documents. Employers must examine the documents presented and accept
them if they reasonably appear to be genuine and relate to the employees that present
them. If the documents presented do not reasonably appear to be genuine or relate
to the employees who present them, employers must refuse acceptance and ask for
other documentation from the list of acceptable documents.
Employers are required to retain I-9 forms for each employee for three years from
the date of hire or one year after the date of termination—whichever is longer.
Employers are allowed to make and keep copies of the documents that were examined
when completing Section 2 of the I-9 form but are not required to do so. If employers
make copies of the supporting documents, they should be attached to the I-9 form.
Employers may now digitize I-9 forms and maintain I-9 records electronically rather
than maintaining paper copies. Although employers do not need to submit completed
I-9 forms to any government agency, they must have the forms available for inspection
if audited. Employers are entitled to three days' written notice if federal officials
intend to conduct an I-9 audit unless a warrant has been obtained.
Employers have a good faith defense to a charge of employing unauthorized workers
if they have complied with the I-9 process and do not know they are employing unauthorized
workers. However, even if an employer does not know of employment of an illegal
immigrant, the employer may be liable for civil or criminal violations of IRCA if
the employer is deemed to have "constructive knowledge" or has displayed "willful
blindness." Constructive knowledge is knowledge that may be inferred through notice
of certain facts and circumstances that would lead a person, through the exercise
of reasonable care, to know about a certain condition.
Summary of the rule
The finalized version of the rule essentially mirrors the rule proposed in June
2006. Still, many questions remain unanswered in the finalized version, and it is
expected DHS will provide additional guidance in the coming months. When that information
becomes available, NRCA will alert members.
The final version of the no-match regulation broadens the previous definition of
constructive knowledge by adding that the constructive knowledge of unauthorized
employment begins when an employer receives a no-match letter from SSA or DHS. Specifically,
the no-match regulation adds three new examples of what constitutes constructive
knowledge by an employer that an employee may be unauthorized for employment in
the U.S. The examples include:
- A request by the potential employee to file an alien labor certification or employment-based
immigrant visa petition
- Written notice from SSA that the combination of name and Social Security number
submitted for an employee does not match its records
- Written notice from DHS that the immigration-status or employment-authorization
document presented or referenced by the employee in completing Form I-9 was not
assigned to the employee according to DHS records
The rule also states DHS will continue "to review the totality of relevant circumstances"
when determining whether an employer had constructive knowledge that an employee
was an authorized worker.
Safe harbor procedures
The rule describes specific steps an employer should take upon receipt of an SSA
no-match letter or DHS communication to avoid a finding that the employer had constructive
knowledge of employing an illegal immigrant. If an employer fails to follow the
safe harbor procedures prescribed in the proposed regulation and an employee, who
was the subject of a no-match letter, is found to be an unauthorized alien, the
employer may be found to have constructive knowledge of the employee's unauthorized
status and would be liable for an immigration violation. The steps that a "reasonable
employer" may take to avoid a potential finding that it possessed constructive knowledge
include the following:
- Upon receiving a no-match letter from SSA, the employer should check records promptly
to determine whether the discrepancy is a result of 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 would correct its records; inform
the relevant agencies; and make a record of the manner, date and time of the verification.
ICE would consider a reasonable employer to have acted promptly if the employer
took such steps within 30 days of receipt of the no-match letter.
- If the first step does not resolve the discrepancy, a reasonable employer would
promptly request that the employee confirm his or her records are correct. If correction
is required, the employer would make the correction, inform the relevant agencies
and verify the corrected records with the relevant agency.
- If the employee states the employer's records are correct, the employer is to request
that the employee resolve the discrepancy with SSA. Again, the employer is to take
these steps within 30 days of receipt of the no-match letter.
- If the previous steps lead to resolution, the employer should follow the instructions
on the no-match letter to correct information with SSA and retain a record of the
verification with SSA.
- If the discrepancy in the no-match letter is not resolved within 90 days, the employer
and employee would then have an additional three days to complete a new Form I-9
with certain restrictions. No document containing the Social Security number 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. Furthermore, no document without a photograph may be used to establish
identity. If at this point an employee's identity and work authorization cannot
be verified, then, according to the DHS rule, the employer must choose between terminating
the employee or facing the risk that DHS may find that the employer had constructive
knowledge that the employee was an unauthorized alien and the employer violated
the law by continuing to employ the individual.
DHS warns that an employer who followed a procedure other than the safe harbor procedures
described in the proposed regulation would face the risk that DHS may not agree
that the employer did not possess constructive knowledge. Employers are to apply
the procedures in the regulations uniformly to all employees who are the subject
of no-match letters; otherwise, DHS cautions, the employer may violate applicable
anti-discrimination laws.
The safe harbor is not without its limits. DHS makes it clear that "if, in the totality
of the circumstances, other independent evidence exists to prove that an employer
has constructive knowledge, the employer may still face liability" even if the employer
strictly adhered to the procedures outlined. Also, the safe harbor does not apply
to a situation in which DHS believes the employer had actual knowledge of hiring
undocumented workers.
Information sharing
The DHS regulation does not mandate that SSA share information with DHS. Although
SSA will continue to send no-match letters to employers, SSA will not provide DHS
with the names of employers who have received such letters, and the no-match letters
alone will not trigger immigration work-site enforcement actions. However, if DHS
is conducting an I-9 audit, it could use the fact the employer received no-match
letters to try to prove the employer had actual or constructive knowledge of hiring
undocumented workers.
DHS has also clarified that the final rule applies only to written notices issued
directly to the employer from the SSA or DHS. It does not apply to information employers
receive through sources other than no-match letters. This includes a discrepancy
an employer may learn about in using the Social Security Number Verification Service
(SSNVS), for example, which is a voluntary program employers can use to verify Social
Security numbers.
Other enforcement initiatives
Aside from converting no-match letters into an immigration enforcement tool, the
new administration plan contains other significant measures of concern to the employer
community. Notably, the package would:
- Rename and expand the employment eligibility verification Basic Pilot program:
Homeland Security Secretary Michael Chertoff announced DHS will rebrand the Basic
Pilot employment verification program, which currently is mostly voluntary, and
will expand the program more than tenfold by mandating its use by more than 200,000
federal contractors and vendors. The program will now be called "E-Verify."
Regrettably, the name change will do nothing to address the serious flaws that have
been well-documented in its current small and voluntary state. Those problems include
inaccurate data, significant privacy lapses and employer abuse. The information
inaccuracies frequently lead individuals to delay their start dates or lose their
jobs.
- Encourage states to make E-Verify mandatory: The administration plans to
conduct outreach and provide technical assistance to states to help them require
all businesses to use the E-Verify program.
- Expand information-sharing between DHS, SSA and state departments of motor vehicles:
The new data sources used in E-Verify will include visas and passport information,
as well as pictures and data from state motor vehicle departments. It is unclear
what, if any, other sources would be tapped in the increased collection of data
that will be widely available to the expanding number of program participants. Such
sharing of information between inaccurate DHS databases and SSA raises concerns
both about privacy and the potential for proliferation of inaccurate information.
- Continue efforts at state and local law enforcement of immigration law: The
administration announced plans to continue its 287(g) program that allows states
and localities to enter into agreements with the federal government to enforce immigration
law.
Conclusion
NRCA submitted comments in opposition when the rule was originally proposed because
of concerns about employer liability, workability problems, unintended termination
of legitimate workers and damage to the overall economy. Most of the concerns raised
by NRCA and other stakeholders are not addressed by the finalized version of the
rule; however, NRCA intends to work with DHS as implementation moves forward and
additional clarifications are issued.
In the meantime, please be certain to follow carefully the safe harbor procedures
outlined in this Special Report, and document and inform NRCA of any difficulties
encountered when attempting to comply with the new regulation so NRCA can communicate
them to the relevant agencies.
Finally, we have seen during the past couple of years a proliferation of immigration
enforcement initiatives at the state and local levels. With the apparent inability
of the U.S. Congress to enact immigration reform legislation, state and local authorities
have taken it upon themselves to fill the enforcement void left by federal inaction.
Please be especially aware of any statutes or regulations—in place or contemplated—that
might differ from the new federal no-match rule. For specific information about
state immigration laws, refer to "The states take a stand," a feature article that
appeared in
Professional Roofing's August 2007 issue.
Click here to access the article online.
If you have any questions or concerns, please feel free to contact NRCA's Washington,
D.C., staff directly at (800) 338-5765 or (202) 546-7584.