Monday, November 12, 2007
Lawrence J. Needle Speaks to Clemson Faculty
Mr. Needle will speak on current Immigration Topics on Wednesday, November 7.
Wednesday, November 7, 2007
Social Security Administration Issues “No Match” Rule
The Social Security Administration (SSA) issued a final rule effective September 14, 2007 regarding I-9 employment verification and the receipt of no match letters from the SSA. The employer sanctions provisions of the 1986 Immigration Reform and Control Act of 1986 (IRCA) govern the manner in which employers may be held liable for failing to complete, or improperly completing, an I-9 form for each employee hired. Similarly, employers may be held liable if the employer has either actual or constructive knowledge that a worker is not authorized for employment in the United States. In addition, however, IRCA includes penalties for citizenship and national origin discrimination and for those employers committing document abuse.
Most violations prosecuted by the government in the past have concerned paperwork violations. For example, an employer has always been required to accept documents such as driver’s licenses and social security cards at face value if those documents appeared genuine on their face. In other words, an employer could not refuse one of those documents if they appeared authentic without subjecting itself to potential claims of national origin or citizenship discrimination. Very few employers were ever subject to fines for actual knowledge that an employee was unauthorized to work.
Under the new regulations, however, the government now has an additional weapon at its disposal to demonstrate that an employer has “constructive knowledge” that an employee is not authorized to work in the United States. If an employer follows guidelines in the regulations, however, after receiving a “no match” letter from the SSA, the employer is provided a “safe harbor” defense should the government later seek to charge the employer with constructive knowledge that an employee has no valid working status in the United States.
According to the government’s website, an employer must take a number of steps in the event it receives a no match letter and apply all such steps equally with respect to any of its employees. Because the government recognizes that the social security records are not infallible, the immigration service first requires an employer to check for clerical errors within 30 days to ensure that the no match result was not the fault of a clerical error on the part of the employer. If this does not resolve the problem, the employer must then request the employee to confirm whether or not the employer’s records are accurate. An employer may ask the employee to resolve any discrepancy with the Social Security Administration, but in no event may the employee fail to resolve the matter with the SSA within 90 days of the employer’s receipt of the SSA letter.
If an employer is actually able to successfully resolve the “no match” within 90 days, the employer should ensure that the Social Security Administration has corrected its own records by using the social security number verification service and also keep a copy of the date and time of verification. The verification service can be found at www.socialsecurity.gov/employer/SSNV-htm. The telephone number is 1-800-772-6270.
The Department of Homeland Security indicates that, if none of these measures resolve the issue within 90 days of receipt of the no match letter, the employee must complete within three days a new I-9 form with additional documentation verifying the employee’s work authorization. However, the employee may not utilize any document containing the prior social security number in dispute. Furthermore, the employee is required to provide a photograph establishing his/her identity.
If the new I-9 cannot be completed within three days after 90 days of receipt of the no match letter, the employer must terminate the employee. Otherwise, the employer risks civil, and even potential criminal, liability for continuing to hire an unlawful worker. If the employer continues to hire such workers, the employer will be deemed to have constructive knowledge of an employee’s unauthorized status. However, employers should not terminate employees without first attempting to resolve the no match letter, or treat certain employees differently from other employees, in order to avoid any potential charge of employment discrimination.
As a result of these regulations, there has been a genuine uproar from the business community, as well as the AFL-CIO, other unions, etc. complaining that enforcement of these regulations could be tremendously disruptive to the economy and could easily lead to the termination of employees who actually do have appropriate work authorization but which cannot be verified due to inadequate or incomplete records from the SSA. Just recently, a federal district court judge in California issued a preliminary injunction enjoining the Department of Homeland Security from enforcing regulations at least until October 1, 2007, when a separate federal judge will consider whether or not to grant a permanent injunction.
Advocates for different groups have argued, among other things, that the no-match rules could be used as a pretext to fire employees if they report a wage claim, or workplace hazard, or if they get injured on the job. Others have claimed that both the DHS and SSA have overstepped their constitutional bounds in issuing the regulations, claiming that the DHS and SSA cannot use wage and tax data in order to enforce immigration law. Others have taken a more practical approach in arguing that SSA records are sometimes incomplete or plain inaccurate which could lead to employers dismissing employees who actually have appropriate work authorization. These scenarios could potentially lead to discrimination against those employees who are terminated because they appear to be foreign if employers otherwise fear being slapped with civil, or even potential criminal, sanctions. Unfortunately, in the absence of comprehensive immigration reform, businesses face heightened scrutiny and even greater responsibilities each time they receive a no match letter.
Most violations prosecuted by the government in the past have concerned paperwork violations. For example, an employer has always been required to accept documents such as driver’s licenses and social security cards at face value if those documents appeared genuine on their face. In other words, an employer could not refuse one of those documents if they appeared authentic without subjecting itself to potential claims of national origin or citizenship discrimination. Very few employers were ever subject to fines for actual knowledge that an employee was unauthorized to work.
Under the new regulations, however, the government now has an additional weapon at its disposal to demonstrate that an employer has “constructive knowledge” that an employee is not authorized to work in the United States. If an employer follows guidelines in the regulations, however, after receiving a “no match” letter from the SSA, the employer is provided a “safe harbor” defense should the government later seek to charge the employer with constructive knowledge that an employee has no valid working status in the United States.
According to the government’s website, an employer must take a number of steps in the event it receives a no match letter and apply all such steps equally with respect to any of its employees. Because the government recognizes that the social security records are not infallible, the immigration service first requires an employer to check for clerical errors within 30 days to ensure that the no match result was not the fault of a clerical error on the part of the employer. If this does not resolve the problem, the employer must then request the employee to confirm whether or not the employer’s records are accurate. An employer may ask the employee to resolve any discrepancy with the Social Security Administration, but in no event may the employee fail to resolve the matter with the SSA within 90 days of the employer’s receipt of the SSA letter.
If an employer is actually able to successfully resolve the “no match” within 90 days, the employer should ensure that the Social Security Administration has corrected its own records by using the social security number verification service and also keep a copy of the date and time of verification. The verification service can be found at www.socialsecurity.gov/employer/SSNV-htm. The telephone number is 1-800-772-6270.
The Department of Homeland Security indicates that, if none of these measures resolve the issue within 90 days of receipt of the no match letter, the employee must complete within three days a new I-9 form with additional documentation verifying the employee’s work authorization. However, the employee may not utilize any document containing the prior social security number in dispute. Furthermore, the employee is required to provide a photograph establishing his/her identity.
If the new I-9 cannot be completed within three days after 90 days of receipt of the no match letter, the employer must terminate the employee. Otherwise, the employer risks civil, and even potential criminal, liability for continuing to hire an unlawful worker. If the employer continues to hire such workers, the employer will be deemed to have constructive knowledge of an employee’s unauthorized status. However, employers should not terminate employees without first attempting to resolve the no match letter, or treat certain employees differently from other employees, in order to avoid any potential charge of employment discrimination.
As a result of these regulations, there has been a genuine uproar from the business community, as well as the AFL-CIO, other unions, etc. complaining that enforcement of these regulations could be tremendously disruptive to the economy and could easily lead to the termination of employees who actually do have appropriate work authorization but which cannot be verified due to inadequate or incomplete records from the SSA. Just recently, a federal district court judge in California issued a preliminary injunction enjoining the Department of Homeland Security from enforcing regulations at least until October 1, 2007, when a separate federal judge will consider whether or not to grant a permanent injunction.
Advocates for different groups have argued, among other things, that the no-match rules could be used as a pretext to fire employees if they report a wage claim, or workplace hazard, or if they get injured on the job. Others have claimed that both the DHS and SSA have overstepped their constitutional bounds in issuing the regulations, claiming that the DHS and SSA cannot use wage and tax data in order to enforce immigration law. Others have taken a more practical approach in arguing that SSA records are sometimes incomplete or plain inaccurate which could lead to employers dismissing employees who actually have appropriate work authorization. These scenarios could potentially lead to discrimination against those employees who are terminated because they appear to be foreign if employers otherwise fear being slapped with civil, or even potential criminal, sanctions. Unfortunately, in the absence of comprehensive immigration reform, businesses face heightened scrutiny and even greater responsibilities each time they receive a no match letter.
New Feature
Lawrence J. Needle is proud to announce the launch of a terrific new feature on the firm's website, The Immigrant Update. Visitors can access up to the minute information regarding immigration issues of interest. We are very proud of this new feature and encourage you to visit it frequently.
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