Immigration Update: Handling Social Security No-Match Letters to Take Effect - New Regulations

The Department of Homeland Security (DHS) has finalized its rules advising employers how to handle the receipt of the (confusing) Social Security No-Match Letters. Under the new rules, employers can now follow a verification procedure that would provide a "safe harbor" defense to any claims made by the DHS that the company has "constructive knowledge" that the employee is unauthorized to work in the United States. Employers are advised of the importance of this new procedure and should adopt practices that seek to utilize this safe harbor defense, when they receive a Social Security no-match letter.

Under these new regulations, the following procedure should be followed in order to take advantage of the safe harbor defense that the company had no constructive knowledge that the employee was unauthorized to work in the United States:

(1) Check internal records for clerical errors reported to the Social Security Administration for the employee within 30 days of your receipt of the no-match letter. Contact and update the Social Security Administration (SSA) with any discrepancies found per the written instructions from SSA (this may require that you update SSA in less than 30 days from receipt of the no-match letter);

(2) Assuming there is no clerical error, request that the employee confirm that his/her name and social security number that the company has are correct. If the employee confirms that they are correct, notify the employee of the date that the company received the no-match letter and have him/her resolve any discrepancies with the local SSA office. If the discrepancies are found and corrected by the employee with the SSA, update SSA by letter. Give the employee no more than 90 days from the date on which you received the no-match letter from SSA in which to accomplish these tasks;

(3) If the discrepancy is not resolved within this 90-day period the employer should take reasonable steps within to reverify the employee's work authorization - i.e. utilize the same steps for verifying work authorization as though he/she were a new employee. Thus, the employee must complete a new Form I-9 within 3 days (of the end of the 90-day deadline). However, when completing a new Form I-9 no document with the social security number on it will be considered eligible for Section 2 work authority purposes.

Failure to satisfy the Form I-9 work authority requirements means that the employee lacks work authority and an employer will be considered to have "constructive knowledge" (by DHS) that the employee does not have proper work authority. This becomes relevant, because where an employer has "actual" or "constructive knowledge" that the employee is unauthorized to work, if the company continues to allow the employee to work, the company and certain managers may be liable for civil and/or criminal penalties.

In addition to the new safe harbor defense, the new regulation further expands upon the definition of "constructive knowledge," to include three new scenarios:

(1) An employee requests sponsorship for a labor certification or visa petition;

(2) The company receives a no-match letter from SSA (see above); and

(3) The company receives a notice from DHS that the employee's employment authorization documents used to establish work authorization on the Form I-9 do not match DHS records.

DHS has additionally communicated that it will continue to increase enforcement actions against employers, including an increase the number of audits that it will perform of company Form I-9s and immigration compliance procedures. Employers are advised to perform their own internal Form I-9 audits and/or review their immigration compliance procedures, including Social Security No-Match procedures.

The new rules will become effective on September 14, 2007. Please contact Kevin Mosher of Wessels Sherman's Immigration Response Team for guidance on complying with these or any other immigration related rules or procedures.