by Elizabeth R. Blandon
Starting in September, the Department of Homeland Security (DHS) will make use of specific procedures to charge employers that they should have known of the improper legal status of their employees. Thus, the employers must not fail to take reasonable steps to address the following situations:
An employee’s request for the employer’s sponsorship of the employee for a labor certification or visa petition;
Receipt of a no-match letter from the Social Security Administration (SSA); and
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.
While other actions may be sufficient, if the employer follows a “safe harbor” protocol, DHS promises immunity from charges during a civil or criminal investigation. The protocol is as follows:
Within 30 days of Receipt of the Notification From the Government
No-Match Letter from SSA: The employer must check its records to determine whether the discrepancy was caused by a clerical error. If it was, the employer must correct the error with SSA.
If the employer determines that the SSA no-match is not a result of an error in the employer’s records, the employee must confirm that the name and social security account number in the employer’s records are correct. If the information is incorrect, the employer must make corrections, inform the SSA of the correction and verify a match on the corrected information, and make a record of its actions.
If the employee confirms that the employer’s record information is correct, the employer must promptly advise the employee of the date of receipt of the no-match letter and advise the employee to resolve the discrepancy with the SSA no later than ninety (90) days after the receipt date.
Notice of discrepancy from DHS: The employer must contact the local DHS office in accordance with the written notice’s instructions and attempt to resolve the question raised by DHS about the immigration status document or employment authorization document.
Within 93 days of Receipt of Notification from the Government
If the discrepancy cannot be resolved with either SSA or DHS within 90 days of receipt of the written communication from either agency, the employer must attempt to re-verify the worker’s employment eligibility by completing a new I-9 employment verification form. Companies should use the same procedures as when completing an I-9 form at the time of hire, with a few exceptions.
If the employer cannot verify the employee’s work eligibility through a new I-9 form, the employer must decide whether to terminate the employee, or face the risk in any subsequent DHS enforcement action. The final rule provides that whether an employer would be found to have constructive knowledge in any particular case will depend on the “totality of relevant circumstances.” An employer should not terminate an employee until the process is completed, unless the employer obtains actual knowledge (such as through an admission by the employee) that the employee is not eligible for employment.
No “safe harbor” protocol is available where an employee requests employer sponsorship for a labor certification or visa petition and the employee turns out to be unauthorized for work.
This information was provided in part by the American Immigration Lawyers Association. Immigration laws and the regulations used to interpret them are complicated and constantly changing.