U.S. Immigration and Customs Enforcement (US ICE) has amended the regulations relating to the unlawful hiring or continued employment of unauthorized aliens. 72 FR 45611, August 15, 2007. The amended regulation expands the definition of constructive knowledge of the hiring or employment of unauthorized aliens by adding the following three situations: (1) an employee’s request for the employer’s sponsorship of the employee for a labor certification or visa petition; (2) receipt of a no-match letter from the Social Security Administration (“SSA”); and (3) receipt of a notice from DHS (usually after an I-9 audit) that the employee’s employment authorization documents presented in connection with completion of the I-9 form do not match DHS records. ). The regulations also provide a “safe-harbor” procedure that, if the employer follows in response to such a letter, will protect it from any allegation’s by DHS that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States. The no match letter is a letter from the Social Security Administration (SSA) that states that the combination of name and Social Security account number submitted to the SSA for an employee does not match agency records.
The “safe-harbor” procedures include 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. If such information cannot be verified, then the employer risks a finding of constructive knowledge of unlawful employment of an alien if it does not terminate such employment. An employer should not terminate an employee until it has completed the safe harbor procedures, unless the employer obtains actual knowledge (such as through an admission by the employee) that the employee does not have valid work authorization in the U.S.
The following are the steps that ICE considers reasonable under the safe harbor procedures in the event of receipt of an SSA no-match letter:
1) No later than 30 days after receipt, the employer checks its records to ensure that the mismatch was not the result of an error on the part of the employer.
2) If this does not resolve the problem, the employer asks the employee to confirm the accuracy of the employer’s records.
3) If this still does not solve the problem, then the employer should ask the employee to resolve the issue with SSA. The employer should inform the employee that the employee has 90 days from the date the employer received the No-Match letter to resolve the matter with SSA and that the resolution could take time.
4) If the employer resolves the mismatch, it should follow all instructions in the SSA letter. The employer should also verify that the error has been corrected by using the Social Security Number Verification Service (SSNVS) administered by SSA, and retain a record of the date and time of verification. SSNVS can be accessed through http://www.socialsecurity.gov/employer/ssnv.htm or by telephone at 1-800-772-6270; and
5) If none of the above procedures solves the problem, then within 90 days of receipt of the no-match letter, the employer should complete, within three days, a new I-9 Form as if the employee in question were newly hired, except that no document may be used to verify the employee’s authorization for work that uses the questionable Social Security number. Additionally, the employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization.