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News: Safe Harbor Provisions and No-Match Letters for Employers Regarding Employment of Aliens

Safe Harbor Provisions and No-Match Letters for Employers Regarding Employment of Aliens

On August 15, 2007, the U.S. Immigration and Customs Enforcement published its final “No Match" regulation: "Safe Harbor Procedures for Employers Who Receive a No-Match Letter". The new regulation becomes effective on September 14, 2007.

In summary, the new regulation describes an employer’s legal obligations when the employer receives a “no-match letter” from the Social Security Administration (SSA) advising that an employee's name and Social Security Number do not match agency records, or when the employer receives a letter from the Department of Homeland Security (DHS) regarding employment verification forms.

The regulation sets forth “safe-harbor” procedures that the employer, having received such a no-match letter, can follow. If the employer follows the procedure exactly, it promises assurance to the employer that DHS will not use the notice letter as any part of an allegation that the employer had constructive knowledge that the employee is an alien without proper work authorization.

Importantly, the regulation adds two more examples to the current definition of “knowing” to illustrate situations that may lead to a finding that an employer had such constructive knowledge. The additional examples involve an employer's failure to take reasonable steps in response to either of two events:

First, the employer receives a written notice from the Social Security Administration (the “no match letter”) advising that the combination of name and Social Security Number submitted to the Social Security Administration for an employee does not match agency records; or

Second, the employer receives written notice from the Department of Homeland Security that the immigration status or employment-authorization documentation presented by the employee in completing Form I-9 was not assigned to the employee according to Department of Homeland Security records (this would typically be in a situation where an I-9 audit had been performed).

The "safe harbor" protocol is as follows:

Within 30 days of receiving a no-match letter from the Social Security Administration, the employer must 1) check its records to determine whether the discrepancy was caused by a clerical error, 2) correct the error with SSA, and 3) verify that the corrected name and social security number now match SSA's records. The rule advises employers to retain a record of the manner, date, and time of such verification. While the employer may update the I-9 form relating to the employee or complete a new I-9 (retaining the original), it should not perform a new I-9 verification.

If the employer determines that the SSA no-match is not a result of an error in the employer's records, the employer must promptly request that the employee confirm that the name and social security account number in the employer's records are correct. If the information is incorrect, the employer must make corrections, inform the SSA of the correction and verify a match on the corrected information, and make a record of its actions.

If the employee confirms that the employer's record information is correct, the employer must promptly advise the employee of the date of receipt of the no-match letter and advise the employee to resolve the discrepancy with the SSA no later than ninety (90) days after the receipt date. The employer is under no legal obligation to advise the employee regarding the means or manner of resolving the discrepancy with the agency.

Within 30 days of receiving a no-match letter from the Department of Homeland Security (again, most likely after an I-9 audit), the employer must contact the local DHS office in accordance with the written notice's instructions and attempt to resolve the question raised by DHS about the immigration status document or employment authorization document. It is important to note that the specific instructions in the notice may provide less than 30 days for the employer to respond.

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