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This Time, No-match Rule May Stick
By Rick Jordahl

Brace yourself for more government scrutiny of your workforce in the new year. With October’s release of the Supplemental Final Rule, the U.S. Department of Homeland Security has renewed its commitment to bar illegal immigrants from the workplace.

The latest DHS effort follows a previous attempt, proposed in June 2006, which was delayed last year following a preliminary injunction by the U.S. District Court for the Northern District of California. 

“The additional information in this supplemental rule addresses the specific items that the court raised, and we expect to be able to quickly implement it,” says DHS Secretary Michael Chertoff.

Given that, let’s take a look at what you can do to avoid problems that may arise if the rule becomes law.

 First, DHS’s Supplemental Final Rule will not take effect until U.S. District Court Judge Charles Breyer lifts the current injunction. A decision is expected in early 2009. If implemented, the regulation may require employers to terminate workers who receive Social Security Administration no-match letters, which occurs if discrepancies cannot be resolved within 93 days. There were no no-match letters sent out in 2008.

If the new rule passes, the Social Security Administration may send employers a no-match letter that identifies employees’ names and Social Security numbers listed on the employers’ Form W-2 wage reports that do not match SSA’s records. While the DHS states that SSA’s no-match letters are “legitimate indicators of possible illegal work by unauthorized aliens,” the letters, by themselves, do not establish that an employee is unauthorized.

Not every individual situation will result in a letter. According to the proposed final rule, “SSA sends (no-match) letters only when an employer submits a wage report reflecting at least 11 workers with no-matches, and when the total number of no-matches within a wage report represents more than 0.5 percent of the employer’s total Form W-2s in the report.”

Complicating matters, many employers don’t know what actions are required if they receive a no-match letter. “Many of my clients consider this a very confusing and challenging issue,” says Don Tyler, agricultural management consultant. “One question I often get is, ‘What do I do if I find out that someone who’s been working for me for a few months is actually not documented?’”

Immigration and Customs Enforcement, DHS’s enforcement ally in immigration matters, offers help in answering such questions.  DHS also provides guidance to employers by outlining specific recommended steps for hiring. As with many government regulations, you may need a lawyer who is versed in employment issues to help translate the proposed rule. For access to the 100-page document, click here.

Check Your Records

Bottom line, DHS expects employers to screen workers before hiring. So, take the time to make sure all your workers are verified.

“The DHS proposed rule is first and foremost an enforcement tool,” says Rob McCully, a member of the Government Enforcement Practice at Kansas City, Mo., law firm Shook, Hardy & Bacon. “While the rule does provide some safe-harbor guidance for employers, the proposed rule at its core seeks to put employers on notice that the receipt of a SSA no-match letter will be deemed constructive knowledge of an unauthorized alien in the workplace, subjecting the employer to potential civil and criminal penalties.”

So, be sure you are ready for implementation. “There is a lot of interest by the DHS in getting the rule on the books, and I think it will become law sooner rather than later,” says Denise Gebara, human resources manager, Hitch Enterprises, Guymon, Okla. “When it does become law, producers should continue screening and verifying employees, just as they have been doing in the past.”

That includes filling out I-9 Forms for each new employee. It will be important to complete records for each step of the process.

“If you receive a no-match letter, the first thing to do would be to review your records on the employee to see if you made an error entering the Social Security number or the name spelling,” Gebara says. “If you haven’t, then you should notify the employee and ask him or her to come and see you to confirm the accuracy of your records.” She points out that the SSA is very helpful in assisting producers in resolving any issues that arise from no-match letters.

Gebara cautions employers that not every immigrant worker may be aware of his or her exact immigration status. “Due to employment programs in the past or language barriers or translation issues, some workers may be unaware of their current work status, although this probably is a rare case” she says.

 According to DHS’ proposed rule, an employer must be aware of and comply with the anti-discrimination provisions of the Immigration and Nationality Act — the basic body of immigration law. “Employers should not assume that a no-match letter is the result of any wrongdoing on the employee’s part, and should proceed cautiously and with counsel before taking any employment action,” McCully cautions. 

When selecting a course of action regarding unauthorized employees, you must move carefully. “Employers must remain aware of Title VII of the Civil Rights Act of 1964, which prohibits the unequal treatment of applicants or employees due to citizenship, immigration status or national origin,” says Katherine Sinatra, Employment Litigation and Policy Practice member at Shook, Hardy & Bacon. “Retaliation against an individual for complaining about such discrimination is unlawful. Treating people equally and according to published company policies is always the best practice.”

A Safe Harbor

Safe harbor procedures are the steps and allotted time frames that you can take in response to receiving a no-match letter. If you follow safe harbor procedures in good faith, ICE will not use the receipt of a no-match letter as evidence that you violated the employment provisions of the Immigration and Nationality Act by knowingly employing unauthorized workers.

To combat unlawful employment and to assist you in hiring authorized immigrant workers, ICE has introduced the Mutual Agreement between Government and Employers or IMAGE program. It is designed to build cooperation between employers and government. To become an IMAGE participant you must adopt “best employment practices” outlined by ICE. To access this, click here.

As part of the IMAGE program, ICE will provide education and training on proper hiring procedures, how to detect fraudulent documents, verifying employment eligibility and anti-discrimination safeguards. For more information, click here.  

Take advantage of the opportunity to get more proactive about immigrant employees’ work authorization. If the court lifts the injunction against DHS’ rule, it will become effective immediately. Now is the time to get prepared and to assure the validity of worker employment records and each employee’s current status.

Double check records on all your workers. If any activity with the SSA, ICE or DHS results, keep complete records on who is involved, dates and the issues discussed.

Be sure to meet all time requirements and deadlines. Also, you may want to consult your lawyer. Your efforts will make things run smoothly in the long run.

Unauthorized Immigrant Workers: “What Can I Do?”

There are several things that you can do to avoid illegally hiring unauthorized immigrants.

• Verify Social Security numbers. Employers can verify up to 10 names and Social Security numbers (per screen) online and receive immediate results. This option is ideal to verify new hires.
• Use E-Verify. Free, safe and simple to use, E-Verify is an Internet-based system that lets you rapidly confirm the legal working status of new hires. With one click, E-Verify can match your new hire’s Social Security number and other I-9 Form information.
• E-Verify helps employers avoid hiring unauthorized workers, while protecting civil liberties and employee privacy. Initial verification usually occurs within 3 to 5 seconds.
• More than 92,000 employers are currently using E-Verify to verify that their new hires are authorized to work in the United States.
• The Social Security Administration has several other suggestions for you to consider.   

If You Receive a No-match Letter

The U.S. Department of Homeland Security regulations describe what steps you should take upon receiving a no-match letter. Here’s a snapshot.

• Verify within 30 days that the mismatch was not due to a recordkeeping error on your part.
• If you find no recordkeeping error, have the employee confirm the employment record’s accuracy.
• Ask the employee to resolve the issue with the Social Security Administration. 
• If these three steps resolve the problem, follow instructions provided with the no-match letter to correct the information with SSA, and retain a record of the SSA verification.
• If the information could not be corrected, complete a new I-9 Form without using the questionable Social Security number; instead use the employee’s documentation that conforms with the I-9 document-identity requirements, which includes a photograph and other biographic data. This must be completed within 93 days of receiving a no-match letter.
  
  Any employer unable to confirm an employee through these procedures risks being found in violation of the law by knowingly continuing to employ unauthorized workers.

Use Best Hiring Practices

The Immigration and Customs Enforcement agency recommends the following hiring practices, of which reporting and recordkeeping are critical components.

• Use the E-Verify employment eligibility-verification program for all hiring.
• Establish an internal training program, with annual updates, on how to complete the I-9 Form, how to detect fraudulent documents in the I-9 process and how to use E-Verify.
• Allow only individuals who have received training to conduct the I-9 and E-Verify process. Include a secondary review as part of each employee’s verification.
• Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 and E-Verify process.
• Establish a self-reporting procedure for any violations or deficiencies that you discover related to ICE requirements.
• Establish a protocol for responding to the Social Security Administration’s no-match letters.
• Establish a private way for employees to report knowledge related to the employment of unauthorized aliens, as well as a response protocol to such tips.
• Establish and maintain safeguards to keep the verification process from being used for unlawful discrimination.
• Establish a protocol to adopt best-practices guidelines.
• Submit an annual report to ICE to track results and assess your participation in the Mutual Agreement between Government and Employers or IMAGE program.