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Immigration News Flash

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.