Employers will soon face increased responsibility for an employee’s improper use of a Social Security number. On August 10, 2007, U.S. Immigration and Customs Enforcement issued a new regulation regarding the legal obligations of employers who receive either a letter from the Social Security Administration (SSA) indicating that the Social Security number provided by an employee does not match the information in SSA files, or a similar letter regarding employment verification forms from the Department of Homeland Security (DHS). According to the new regulation, employers who receive such a letter (commonly referred to as a "no-match letter") and fail to take reasonable steps in response can be deemed to have constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States. Failure to respond to the letter may also be used as evidence in civil and criminal actions brought by DHS.
Though the new regulation states that whether an employer had constructive knowledge that an employee is an unauthorized alien will be determined by the "totality of relevant circumstances," it does provide for specific "safe-harbor" provisions that an employer can follow and thereby be certain that the DHS will not use the letter against the employer as part of an allegation of constructive knowledge of an employee’s work authorization status. These safe-harbor provisions are quite specific, but generally include (1) checking for typographical or similar clerical errors in its own files within 30 days of receipt of the no-match letter, correcting the same if necessary, and verifying that the corrected information matches the SSA’s files; (2) requesting confirmation from the employee that the employer’s records are correct within 30 days of receipt of the no-match letter, and either correcting the records if they are incorrect, or if the employee confirms that the records are correct, asking the employee to work with the appropriate agency to resolve the matter (i.e., visiting a local SSA office) and in either case, following up with the SSA to resolve the discrepancy; or (3) following the detailed verification procedure set forth within the rule within 90 days of receipt of the no-match letter.
If the discrepancy referred to in the no-match letter is not resolved, and the employee’s identity and work authorization cannot be verified by the methods set forth in the regulation, then the employer must either (1) take action to terminate the employee, or (2) face the risk that the DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, violated INA § 274A(a)(2), 8 U.S.C. § 1324a(a)(2). It should also be noted that even following all of the safe-harbor provisions will not impact a finding regarding actual knowledge, but relieves an employer from the possibility of a finding of constructive knowledge only.
This new regulation is a significant development because it increases the burden on employers to screen for unauthorized aliens. Indeed, the severity of the new regulation sparked controversy as soon as it was proposed. During the 60 day comment period on the proposed regulation in the summer of 2006, DHS received more than 5,000 comments from a multitude of sources, the vast majority of which were critical of the burdens the proposed regulation places on employers. DHS considered and rejected most of those comments, and issued the proposed regulation as final, with few substantive changes, on August 10, 2007. Opponents of the regulation have said they intend to challenge the rule in court. Employers should understand the regulation and its implications.
Copyright © 2007, Mayer Brown LLP and/or Mayer Brown International LLP. This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.
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