Ø "NO-MATCH LETTER" REGULATION

Ø CONSTRUCTIVE KNOWLEDGE ELABORATED

Ø WHAT CAN BE DONE

Ø SPECIFIC PROVISION AGAINST DISCRIMINATION

Ø CONTACT US

“No-Match Letter” Regulation

On August 15, 2007, the U.S. Department of Homeland Security (“DHS”) published a new regulation concerning employers and their obligations to ensure that the individuals they employ have employment authorization.  While heralded as a “No-Match Letter rule” to provide guidance to employers who receive letters from the Social Security Administration (“SSA”) that indicate that social security numbers of individuals do not match official records names, the rule actually changes Form I-9 rules that have been in place since 1986.  Under these rules, it is unlawful for an employer to continue to employ an individual while “knowing” that this individual does not have, or no longer has, employment authorization.  The regulation defines the term “knowing” not only as actual knowledge but also as “constructive” knowledge.  The regulation also provides a “safe harbor” for those employers who have constructive knowledge of an individual’s lack of employment authorization where the employer acts in a reasonable manner to address this issue.  This regulation takes effect on September 14, 2007. The SSA will begin to send No-Match letters based on last year’s tax returns also in September. We anticipate heightened criminal enforcement by DHS will follow.

Constructive Knowledge Elaborated

Where there is constructive knowledge of an employee not having proper employment authorization, the government may hold the employer liable.  The examples of constructive knowledge given in the regulation include (1) where the employee asks the employer to file a labor certification or an employment-based immigrant petition on his behalf, (2) where the employer receives written notice from the SSA that there is a mismatch between the employee and reported Social Security number, and (3) where the employer receives written notice from the DHS that the documents presented for completing the Form I-9 either is assigned to someone other than the employee in question or that DHS has no record that the documents are assigned to the employee.

These examples of constructive knowledge found in the regulation are not exhaustive.  DHS makes it clear that in determining liability of an employer it will consider a “totality of relevant circumstances.”

What Can Be Done

In providing a “safe harbor” for employers, the new regulation provides that under certain circumstances, if an employee acts reasonably, the government will not hold it liable.  Reasonable actions include checking for clerical errors in the employer’s records, confirming information with the employee, and contacting the SSA or DHS.  In order for the safe harbor to apply, an employer must act within a certain timeline.

If the employer receives written notification from SSA, then

(1)     Within 30 days of receipt of the notice, check to see whether the error was a clerical one on the employer’s part.  If so, then the employer should correct the error in its records, inform SSA of the error, and verify with the SSA that the corrected number does indeed match.  The employer may also update its I-9 record for the employee, but should not perform a new I-9 verification on this basis alone.

(2)     Within 90 days, if the error was not a clerical one, then the employer must have the employee confirm that the name and social security number in the employer’s records are correct.  If the employee indicates that the name and social security number in the employer’s records are not correct, then the employer must correct the record, inform SSA, verify, and make a record of this.  If the employee indicates that the name and social security number are correct, then the employer must advise the employee to resolve the discrepancy with the SSA within 90 days of the date on the employer’s letter from SSA.

(3)     Within 90 days, if the employer is not able to check that the name and social security number for the employee matches, then the employer has three additional days to have the employee complete a new Form I-9 while using documents other than those with the problematic social security number.

If the employer receives a written notice from the DHS, then

(1)     Within 30 days, the employer must contact the DHS and comply with any instructions provided in the notice.

(2)     Within 90 days, if the employer is not able to confirm that the name and documents used for the Form I-9 for an employee match up to that individual, then the employer has three additional days to have the individual complete a new Form I-9 while using documents other than those with problematic information cited in the DHS notice.

Specific Provision Against Discrimination

DHS has explicitly indicated that “[k]knowledge that an employee is unauthorized may not be inferred from an employee’s foreign appearance or accent.”  Employers are cautioned to treat all employees the same and cannot ask foreign appearing employees for more documents than it would everyone else for the purposes of verifying employment authorization.

Contact Us

The above is a brief description of the new regulation and should be not construed as legal advice.  If you have any questions, please do not hesitate to contact your Flynn & Clark immigration attorney so that we can provide you with more detailed information as it may apply to your situation.  In addition, we can also point you to existing government systems which will help you in ensuring employment authorization compliance for your employees.  This will be the subject of a future bulletin from Flynn & Clark.

How can I get more information on the topics in the newsletter?

Contact your Flynn & Clark attorney. We are staying on top of developments in these areas.

Steven A. Clark
Jane P. Devlin

Mary E. Gilbert
Vincent W. Lau
Lynda J. Hagerty

FLYNN & CLARK, P.C. provides a full range of inbound as well as outbound immigration legal services for United States and foreign companies under the leadership of Steven Clark, Past President of the American Immigration Lawyers’ Association (AILA) which has over 10,000 members worldwide. The Immigration Update provides periodic alerts about noteworthy developments in immigration affecting the business community. It is provided as a service of the Firm regarding legal developments; it is not a substitute for legal counseling and may constitute advertising material in some jurisdictions.