By: Kevin Mosher, Esq.
Goodbye No-Match...
On October 7, 2009, the Department of Homeland Security (DHS) published its final rule rescinding its previous 2007 and 2008 Social Security No-Match regulations, which would have allowed employers to receive a "safe harbor" for immigration violations resulting from their receipt of a No-Match letter. As it happens, the No-Match regulations never took effect due to an injunction placed on their implementation by a federal judge. Having announced their decision in July and August to rescind the previous administration's No-Match rules, the final act to rescind the regulations occurred on the 7th. The Bush administration's No-Match safe harbor scheme is now officially shelved.
For some it may be cause to celebrate, but what does the end of the No-Match regulations really mean? Perhaps not much. It is unknown at this time whether the Social Security Administration (SSA) plans to continue to issue the No-Match letters, which it has put on hold pending the outcome of these DHS regulations. If the SSA rolls out No-Match notices once again (which we expect will occur in coming months, barring political delays from immigration reform), then employers will be back where they were in 2006 and before, wondering what to do with these No-Match letters.
If and when these No-Match letters are issued, employers will want to develop a procedure for handling responses to these letters. Generally, the response should entail notifying the employee, providing them with a legitimate opportunity to take action to correct the mismatch issue, and then verifying that the employee has fixed the problem. Summarily firing all employees on the No-Match list is problematic and could open the company up to charges of discrimination. Instead, a systematic approach is advised. Wessels Sherman phone clients and anyone interested in the phone program are welcome to contact me, Kevin Mosher, to address a company's response.
Hello Worksite Visits...
Second, DHS recently began an increased H-1B visa enforcement initiative targeting employers who sponsor employees for H-1B visas. This initiative has resulted in agents making unannounced visits to H-1B sponsoring employers to interview employees, review payroll documents, investigate the employee's job duties and analyze the company's business operations, among other verifications. The goal appears to be to audit the information presented by the employer in support for the H-1B visa application to ascertain its veracity and legitimacy. Early indicators are that the enforcement office for these visits has received information on an estimated 20,000 H-1B employees for worksite audits.
Coupling an increase in H-1B audits with increased worksite enforcement by DHS to investigate employer's unlawful employment of undocumented workers (which began in July), employers' chances of being investigated for immigration violations has never been greater. Employers should seriously consider having an immigration compliance policy, training for supervisors and an action plan for responding to unannounced DHS inquiries, raids and investigations.
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.
