July 6, 2007

Final No-Match Regulation Imminent

It is expected that the Social Security no-match rule regulation proposed by the Department of Homeland Security in June of 2006 will be finalized within the next few weeks.

The new regulation will broaden the definition of "constructive knowledge", under which an employer can be found to have knowingly hired, or continued to employ, an individual not authorized to work in the United States. Under the expanded definition, receipt of a "no-match" letter from the Social Security Administration or notice from the Department of Homeland Security of document discrepancies may constitute "constructive knowledge" unless an employer follows the specified safe harbor process.

The proposed regulation offers an employer the ability to shield themselves under the safe harbor provision if upon receipt of a "no-match" letter they initiate corrective measures within 14 days. However if, at the end of the 60 day period following receipt of the "no-match" letter, the discrepancy has not been rectified the employer is advised to complete a new Form I-9. Documents that were the subject of the notice from the Federal government cannot be utilized when completing the new Form I-9 and a photograph must be provided on the identity document. Employers have a three day window in which to reverify employment eligibility and identity of the employee and if there is no resolution, the employer is instructed to look at the "totality of the circumstances" and either terminate the employee or give up the safe harbor defense.

For a complete analysis of the regulation see http://www.gtlaw.com/practices/immigration/newsletter/archives/024/gtio_024.pdf. Because this rule has not yet been finalized, there could be changes as a result of the comments provided during the comment period.

We will report on final rule once it is published. Note that this rule will have a significant impact on employers and their hiring and employee retention practices and therefore we will monitor the situation closely and advise our clients do the same.