August 12, 2007

Immigration and Customs Enforcement Division of DHS Issues Final Social Security Number No-Match Enforcement Regulation

The Social Security no-match rule regulation proposed by the Department of Homeland Security in June of 2006 was finalized on August 10, 2007, although it has not yet been published in the Federal Register.  The new regulation broadens 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 regulation's specified safe harbor process.

The proposed regulation allows an employer to  partially shield themselves  from liability under the  "safe harbor"  provision if,  upon receipt of a "no-match" letter, they initiate corrective measures within 30 days. However if, at the end of a 90 day period following receipt of the "no-match" letter, the discrepancy has not been rectified the employer must 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 re-verify employment eligibility and identity of the employee, and if there is no resolution, must terminate the employee. Thus, the entire process must be complete in no later than 93 days following receipt of the government's letter.

GT will issue an alert on this regulation shortly to review the specifics.