By: Kevin Mosher, Esq.
Social Security No-Match No More? DHS Announces Action to Rescind No-Match Regulations.
In August 2009, the Department of Homeland Security (DHS) took formal action to rescind its August 2007 Social Security No-Match regulation. If finalized in its current form, the rescission would have the effect of eliminating August 2007 regulations, which provided employers with a safe harbor defense to their constructive knowledge that an employee is unauthorized to work in the U.S. solely based on the receipt of a No-Match letter.
Under the 2007 regulation, once it received one of the ubiquitous No-Match letters, an employer was deemed to have had constructive knowledge that an employee was unauthorized to work in the U.S. The only exception was if the employer followed a certain procedure to provide them with a safe harbor from such knowledge. The 2007 regulations, however, never became effective because a federal judge in California blocked the government's implementation of the regulations first. The court's injunction against the government's implementation of this regulation has been ongoing, and the new administration has apparently decided to abandon the legal fight by seeking to rescind this controversial regulation.
At the same time that DHS announced its intent to rescind its No-Match regulations, the Department announced that it was directing its worksite enforcement efforts against employers who employ unauthorized workers by conducting Form I-9 audits to ascertain an employer's compliance.
ICE-man Cometh? ICE Announces Greater Focus on Workplace Enforcement. Form I-9 Audits Increase.
On July 8, 2009, the Department of Homeland Security's Immigration Customs and Enforcement (ICE) Agency announced that it was "launching a bold, new audit initiative" aimed at U.S. employers. Beginning July 1, ICE sent notices to 652 businesses notifying the companies that ICE intended to conduct an audit of their hiring records (e.g. Form I-9s and accompanying documents) to ascertain whether they had complied with federal immigration laws.
In announcing the move, ICE director John Morton commented that "ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment." To illustrate its new commitment to workplace enforcement measures (see previous Wessels Sherman articles on ICE's new initiative available on our website at www.wesselssherman.com), ICE noted in its press release that in all of FY2008 the agency issued 503 similar notices to companies. To date, at least one company from this July 1 audit initiative is known to have been fined about $150,000.00 for its immigration violations.
The government's efforts and proclamations continue to make it unambiguously evident that the battle against illegal immigration in the U.S. is now being primarily fought against employers and illegal hiring practices. Undoubtedly, ICE enjoys the press that is garnered by these large-scale enforcement actions. Nevertheless, funding for ICE's enforcement activities against employers has increased substantially recently and this new I-9 audit is a clear example of ICE's new strategy of focusing on companies' hiring practices and penalizing employers for failing to comply fully with immigration laws.
E-Verify Now Required For Certain Federal Contractors.
As of September 8, 2009, certain federal contracts issued or renewed will require that signatory employers use the on-line E-Verify system to check the work authority for employees. Once enrolled, employers are required to verify the employee's status using the E-Verify system within three (3) days of their date of hire, and employers must additionally use E-Verify for all employees working in support of the federal contract.
Employers should be aware that not all federal contracts are covered by this new verification requirement. In particular, the new rule only covers certain contracts made pursuant to the Federal Acquisition Regulation (FAR), which are at least $100,000.00 for primary contractors and $3,000.00 for sub-contractors, and which are in duration of 120 days or more. After a company has received the winning bid, contracts that meet these criteria on and after September 8 should have the E-Verify stipulation requiring the contractor to enroll and use the system. For employers who are not currently enrolled in the E-Verify system at the time that they are awarded the federal contract, they will have thirty (30) days in which to enroll and begin using E-Verify.
It might not be lost on employers who have been following the government's implementation of this new requirement that it has been uneven, as the new rule has been delayed several times since it was initially slated to become effective this past January. Further delays were sought by a legal action filed by the U.S. Chamber of Commerce, which asked the federal courts to stop the implementation of this E-Verify requirement. Legal efforts to stop the government's implementation of this rule have been unsuccessful to date.
New Form I-9.
DHS recently issued a newly revised Form I-9, which employers may obtain at www.uscis.gov/i-9. No substantive changes to this new form have been made (REV. 08/07/09), which is welcome relief from the significant changes that were made in April of this year. Employers may still use the previous Form I-9 (REV. 02/02/09) but are encouraged to transition to the new form.
Should you have any questions regarding these or any other immigration related matters, immigration audits, workplace compliance rules and strategies, please contact WS Shareholder and Senior Attorney Kevin Mosher at (952) 746-1700, or email kemosher@wesselssherman.com.
