U.S. Immigration and Customs Enforcement (ICE), the investigative arm of the Department of Homeland Security (DHS), recently issued a final rule, effective Sep. 14, 2007, amending the regulation relating to the unlawful hiring or continued employment of unauthorized aliens. This amended regulation is part of the administration’s stepped-up enforcement effort to crack down on illegal immigration. It describes the employer’s legal obligations when the employer receives a no-match letter from the Social Security Administration (SSA) or receives a letter regarding employment verification forms from the DHS.
The final rule provides that when an employer receives written notice from the SSA (such as an “Employer Correction Request’” commonly known as an employer “no-match letter”) stating that the combination of an employee’s name and Social Security number does not match SSA records, or the employer receives written notice from DHS that the immigration status or employment-authorization documentation presented or referenced by the employee in completing the Form I-9 was not assigned to the employee according to DHS records, the employer must follow “safe-harbor” procedures to avoid being found to have “constructive knowledge” that undocumented workers are employed. (Form I-9 is filled out by employee and employer upon hire, retained by the employer, and is made available to DHS investigators on request, such as during an audit). This includes attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee’s identity and employment authorization through a specified process. (Checking the employer’s records to see if the discrepancy results from a clerical error in the employer’s records and if so, inform DHS and the SSA, make the necessary corrections, and keep a record of the manner, date and time of the verification).
DHS would consider such steps taken by the employer as reasonable if done within 30 days of receipt of the no-match letter. If the employer follows the “safe harbor procedures,” DHS would not use the no-match letter to support any charge that the employer had constructive knowledge of the employee’s lack of work authorization. If the employer, after taking reasonable steps to respond to the no-match letter, finds that the employee’s records are unverifiable, the employer must terminate the employee within ninety days of the receipt of the letter or risk prosecution for knowingly hiring illegal immigrants. The rule also states that DHS will continue to review the totality of relevant circumstances in determining if an employer had constructive knowledge that an employee was an unauthorized alien.
On Aug. 29, 2007 several labor unions, including the AFL-CIO, filed suit to prevent the implementation of this final rule. A couple of days later, the United States District Court for the Northern District of California granted an injunction enjoining defendants from “giving any effect or otherwise taking any action to implement” the new rule. Several chambers of commerce and other business groups moved to join the suit as plaintiffs in this case. The court granted their unopposed motion on Sep. 11. Then on Oct.10, the court granted an injunction enjoining the government from enforcing the new Social Security no-match rule.
The court held that relief was appropriate because plaintiffs raised serious questions about whether (1) the rule is arbitrary and capricious because DHS failed to supply a reasoned analysis for the agency’s new position that a no-match letter is sufficient, by itself, to put an employer on notice of an employee’s unauthorized status; (2) DHS exceeded its authority by interpreting Immigration Reform and Control Act’s provisions; and (3) DHS violated the Regulatory Flexibility Act by not conducting a final flexibility analysis.
Although the injunction came as sweet news to all immigrants and employers who might be affected by the rule, now is not the time for employers or individuals who are working without employment authorization to rest on their laurels. Instead, they should use this temporary reprieve to seek the advice of a qualified immigration attorney to bring themselves into compliance with the I-9 regulations because the government is still motivated to crackdown on illegal immigration by conducting criminal and civil investigations. In response to the judge’s ruling, the Secretary of Homeland Security, Michael Chertoff, noted, “ …[W]e will continue to aggressively enforce our immigration laws while reviewing the decision with Justice Department and will examine all of our legal options including appeal…”
Chertoff’s sentiments rang true when, on Oct. 18, the president of RCI. Inc. was ordered to pay a fine of $16 million after pleading guilty to conspiring to defraud the U.S. government by hiring and harboring illegal aliens. The U.S. attorney who prosecuted the case stated, “This case is an outstanding example of the cooperative efforts of federal law enforcement agencies. The prosecutors assigned to this case inform me that the success of this investigation is due, not just to the exceptional professionalism and diligence of the individual case agents, but also to the remarkable working relationship between ICE and the Internal Revenue Service.”
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.