New Safe Harbor Procedures for Employers Who Might be Employing Illegal Aliens

Are you knowingly employing an illegal alien? The new Department of Homeland Security (DHS) rules provide that even if you are not knowingly employing an illegal alien, you may be found to have constructive knowledge that you are employing an illegal alien. However, the rules provide a new safe harbor procedure to rebut the implication of constructive knowledge in certain situations. 

The Social Security Administration (SSA) regularly sends employers letters stating that one or more of the employees listed in the SSA databases have inaccurate or unmatched social security numbers or names. The letter is often confusing because it delivers information that could lead the employer to believe that the listed employees are unlawfully working in the U.S., but warns that the letter alone should not result in termination of the employee. Similarly, but less frequently, after an I-9 audit the DHS sends a letter questioning the paperwork verifying employees’ legal status.

Because employers are prohibited from knowingly employing illegal aliens and from discriminating on the basis of national origin, employers have been confused about what to do upon receipt of one of these letters. If a question is raised as to the legality of the employees’ paperwork and the employer does nothing, it could appear as if the employer knowingly violated immigration laws – the employer had constructive knowledge that it was unlawfully employing illegal aliens. If the employer fired everyone on the list in contravention of the letter’s warning, the employer is sure to hear from a plaintiff’s employment lawyer regarding discrimination charges.

It seemed obvious that employers receiving No-Match Letters must take some reasonable action during some reasonable period of time to require the employees in question to fix the “no-match” problem or leave employment. However, there was little governmental guidance along this tightrope.

Now, the rules provide direction in the form of a safe harbor. Compliance with the safe harbor procedures rebuts the presumption that an employer’s receipt of a No-Match Letter alone means the employer had constructive knowledge that it employed an illegal alien.

The Safe Harbor:

Clerical Error: Within 30 days of receipt of a No-Match Letter, the employer should do the following: Check its records to determine whether the mismatch was caused by a clerical error. If the employer finds such an error, the employer must correct the error and notify the agency raising the issue as described in the letter and verify that the corrected information is a match. The employer should document the manner, date and time of the verification and store the documentation with its I—9 records. The employer should not repeat the I—9 verification process but should either revise the old I—9 form or attach a new I—9 form with the corrected information to the original I—9 form.

If the mismatch was not caused by the employer’s clerical error, the employer must have the employee review the name and social security number as reported to determine whether the employer’s records are accurate. If the employee advises that the employer’s information is inaccurate, the employer must follow the same correction procedures as if the employer had found its own clerical error, also to be completed within 90 days of receipt of the No-Match Letter.

If the employer’s and employee’s information appears to be accurate, the employer must require the employee to correct the issue and provide proof of the correction to the employer within that same 90 day period following receipt of the No-Match Letter.

If the employee is unable to resolve the discrepancy within 90 days of the employer’s receipt of the No-Match Letter, the employer must again verify the employee’s eligibility for employment, using the I-9 form procedures as modified below, within 93 days of the employer’s receipt of the No-Match Letter. This modified verification requires the employer to follow regular I-9 procedures except that (1) the employee must complete Section One of the I-9 Form and the employer must complete Section Two, however, the employer may not accept any document containing the disputed social security number, and the employer cannot accept a receipt for the replacement of such a document. The employee’s verification must include a listed photo id. The records should be documented and retained in the same manner as a clerical error would be corrected, as described above.

If the employee is unable to provide appropriate verification documents in compliance with the I-9 rules within 93 days of the employer’s receipt of the No-Match Letter, the employer must terminate the employee’s employment or risk being charged with knowingly employing an illegal alien.

The safe harbor specifically provides that it does not rebut all evidence of constructive knowledge, but only rebuts the letters described herein. Therefore, if the totality of circumstances demonstrates that an employer had knowledge that an employee was unlawfully working in the U.S. because for example, the employee admitted this fact, the safe harbor would rebut the presumption raised by the letter, but would not overcome the other damaging evidence.

Additional Best Practices:

Pro-active employers are taking advantage of the various means of verifying social security numbers and names of all new employees to avoid the surprise of later learning of a mismatch. Employers may verify a prospective or current employee’s name and social security number by calling 1-800-772-6270. See www.ssa.gov/employer/ssnvadditional.htm or for online verification, See www.ssa.gov/employer/ssnv.htm.

While there are numerous challenges to the regulations, they currently remain in effect. Kim Walker, a Shareholder of Williams Parker, is Board Certified in Labor & Employment Law and is available to respond to inquiries on employment-related topics. Mrs. Walker may be reached by email at kwalker@williamsparker.com or 941-329-6628.