Ramification for Employers
In keeping with the ongoing trend for tougher workplace enforcements, the new final rule issued by the Immigration and Customs Enforcement (ICE) concerning the “No-Match” will be a test for employers who are employing legal immigrants in US. The regulation lays down new safe-harbor time frames for employers to act on a No-Match Letter.
Significance of the “No-Match” Letter
The Social Security Administration sends “No Match” letters to employers when an employee’s social security number does not match the government records. Common reasons for these mistakes are clerical errors and employees changing there names, especially for female employees who change surnames after marriage, without going through necessary formalities of informing SSA. But there are also cases of fraudulent record furnished by the employee who is either using a stolen SSA number or doesn’t have Work Authorization.
In the face of growing concerns regarding visa fraud, the new rule regarding No-Match Letter, which goes into effect sometime in September 2007, will make it tougher for the law breakers by laying the burden of responsibility on the Employer.
Employer’s “Constructive Knowledge” and liability
Under the new rules, employer can be subject to various penalties if he or she is found to posses the knowledge of the employees fraudulent records. The following three situations have been defined in which an employer is “deemed to have constructive knowledge” and failure to take appropriate steps can be subject to penalty -
One, when the employee has requested the employer to sponsor his/her labor certification or immigration petition.
Two, when the employer has received a No-Match letter from the SSA
Three, when the employer receives a DHS notice that immigration document used by the employer for verification purposes in Form I-9 does not match the DHS records.
Employers 93 days time frame
Under the new rule, an employer has 93 days from the receipt of the No-Match letter to resolve the issue.
Step 1: If the discrepancy was caused by a clerical error, the employer needs to correct the error and receive verification regarding the new matching records from SSA. The employers are advises to retain a record this verification.
Step 2: If the discrepancy is not a result of clerical error, the employer then must request the employee to confirm the name and social security account number etc. If the information is incorrect, the employer proceeds as in Step 1.
Step 3: If the employer’s record information is correct, the employer then must inform the employee of receipt of the No-Match letter and urge him or her to resolve the issue with the SSA within ninety (90) days from the date of receipt. Note, the employer is not legally obliged to advise the employee regarding how to resolving the issue.
Notice of discrepancy from DHS: The employer will have to follow the instructions on the Notice and contact the local DHS office to resolve the issue. The DHS notice may provide a less than 30 days for the employer to respond.
Immunity for By-the Book Employers
The rule provided immunity from the “constructive knowledge” charges if the employer followed the procedures as stated above.
Beyond 93 days
Step 1: If the issue of the No-Match letter is not resolved within 90 days of receipt, the employer will need to re-verify the employee’s employment eligibility by completing a new I-9 employment verification form. This will require a few additional formalities -
The employee will have to complete Section one and the employer have to complete Section two within the 93 days deadline.
The employer will not be able to accept or use any document that contains the social security number of the employee in question.
The employee will have to provide photographic evidence for identity.
The original I-9 form should be attached.
Step 2: If the completion of a new I-9 form doesn’t resolve the issue, the employer has to decide whether to terminate the employee, or face the risk of penalty. The final rule states that an employer should not terminate the employee until the process is completed, unless the employer has definite proof that the employee is not eligible for employment in the U.S.
The final rule indicates that the authorities would prefer that companies to bear more responsibility towards employment verification issues. This will also provide the employee with a definite time-frame to work on resolving the issue. ICE is confident that the new updated final rule will streamline the process of employee verification and work place enforcement.