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August 23, 2006
Define “Reasonable:” How Practical are the Department of Homeland
Security’s Proposed Amended Worksite Enforcement Regulations
On June 14, 2006 the Department of Homeland Security (“DHS” or the
“Department”) published its proposal for the long-awaited, amended
regulations governing the improvement of worksite enforcement and
I-9 compliance procedures. These proposed regulations describe an
employer’s obligations once it receives either: (i) a “no-match”
letter from the Social Security Administration (“SSA”) in response
to its filing W-2 forms; or (ii) a similar, written notification
from DHS/Immigration and Customs Enforcement (“ICE”). Explaining
the steps to be taken by an employer upon receipt of such a notice,
these regulations provide the employer with an alternative safe
harbor from liability for its constructive knowledge of such
hiring.
Among its proposed safe guards, the Department requires an employer
to attempt to either (i) resolve the no-match issue itself and/or
(ii) verify with the employee (again), his/her identity and
employment authorization. In order to fully protect itself,
however, the employer must commence either of these two steps –
which DHS has deemed “reasonable responses” to such warnings –
within 14 days of being notified by either agency. According to the
regulations, if the employee is in fact an unauthorized worker and
the employer failed “to take such “reasonable” steps, having
resolved the problem within 63 days of its original notification of
the problem, the employer may be found to have had constructive
knowledge of the worker’s unauthorized employment. Based on this
finding, DHS may then impose a variety of civil (i.e., monetary)
penalties against that employer.
As written, several concerns have arisen in response to these
proposed regulations. First, mismatch letters are not a reliable
basis for a worksite enforcement program, given that there are many
lawful reasons why an employer may receive a mismatch letter from
the SSA. Further still, in cases where incorrect information has
been recorded in the SSA’s system, there are no procedures in place,
to date, for correcting such data discrepancies by notifying the SSA.
Third, giving employers – regardless of size – only fourteen (14)
days to take action in response to such notices seems insufficient
and unfair. While large employers will likely be unable to respond
appropriately, especially in instances where they have received
several no match notifications in one day, smaller employers will
also be challenged by this requirement, in that they are rarely
adequately staffed to respond to such issues in a short period of
time. Added to these fears, is the realistic concern that once
these regulations are implemented, SSA will have to process
thousands of mismatch inquiries daily, making a given employer’s
attempts to resolve its own mismatches within the proposed timeline
virtually impossible. As a result, the unintended consequence of the
imposition of such strenuous requirements on good-faith employers
may be that lawful employees are either discriminated against or
unnecessarily and hastily terminated in an employer’s effort to
avoid DHS’ attachment of liability. Certainly, this cannot have
been DHS’ intention in drafting these regulations.
Without question, comprehensive immigration reform cannot take place
without equal attention to both matters of enforcement and
legalization. Therefore, as the immigration debate continues, DHS
invited the public and other interested parties to comment on the
utility and potential effects of this proposed rule. As a result,
several comments were filed with the Department in response to this
request, including those from the Essential Worker Immigration
Coalition and the American Immigration Lawyers Association.
GT continues to monitor the status and effect of these suggestions
on the development of the final regulation and will keep you posted
on the latest developments.
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