Immigration Reform & No Match Letters
|
Is Immigration Reform Really Dead? No tan rápidamente. If you are a frequent recipient of "no match" letters from the Social Security Association, you may soon find yourself wishing the immigration reform bill had passed. In the absence of reform legislation, the authority to promulgate new regulations lies with U.S. Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security. The Assistant Secretary for ICE, Julie Myers, has gone on record to say that ICE will "go after your Mercedes and your mansion and your millions . . . and we'll charge you criminally" if you employ illegal aliens.[1] The failure of the immigration reform bill has provided ICE with both motive and opportunity to fill the vacuum with new regulatory interpretation of the law and ICE, unlike our legislators, is not encumbered by the social accountability we hope to find with our elected officials. To that end, ICE has initiated a strategic shift in the way it approaches employers that intentionally violate the law and knowingly hire illegal aliens. Rather than relying on the old tactic of administrative fines as sanctions, ICE is bringing criminal charges against employers and seizing their assets as the fruits of an illegal enterprise. Last fiscal year, this approach resulted in 127 criminal convictions, up from 46 the previous fiscal year. ICE is also charging more employers with money laundering violations, which can result in prison sentences of up to 20 years. In 2006, a single ICE worksite enforcement investigation resulted in a settlement and forfeiture of $15 million, an amount that represented the largest worksite enforcement penalty in U.S. history and surpassed the sum of all administrative fines from the previous eight years. ICE seeks to enhance its worksite enforcement investigations with proposed additional funding. The Administration's fiscal year 2007 budget request seeks $41.7 million in new funds and 171 additional agents to enhance ICE's worksite enforcement efforts. Most recently, ICE brought criminal charges against seven current and former managers of the nation's largest pallet services company and arrested more than 1,000 of the company's illegal alien employees. Ms. Myers recently stated, "[w]orksite enforcement actions target a key component of the illicit support structure that enables illegal immigration to flourish. No employer, regardless of industry or location is immune from complying with the nation's laws. ICE and our law enforcement partners will continue to bring all of our authorities to bear in this fight using criminal charges, asset seizures, administrative arrests and deportations." If you are an employer this fight is against you and at some point in time, ICE may be knocking on your door. What can you do to protect your company? An employer violates the law if it knowingly hires an unauthorized alien.[2] The Immigration Reform and Control Act made all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. To conform, employers are required to complete I-9 Forms for all employees. If an employer can show that it has complied with the I-9 Form requirements, then the employer has established a "good faith" defense with respect to a charge by ICE of knowingly hiring an unauthorized alien, unless the government can show that the employer had actual knowledge of the unauthorized status of the employee. All was well with this fairly simple "don't ask, don't tell" paradigm until those annoying little Social Security Administration "no match" letters started showing up. The SSA began issuing "no match" letters to employers in 1993 in an attempt to correct errors in its database and properly credit workers' earnings. The letters come in varying forms, but all generally inform the employer of the names and/or social security numbers of employees that could not be matched to SSA records. Although the SSA has no enforcement purposes in issuing the "no match" letters, there is no guarantee that it will not share information with other government agencies. In fact, the Senate's recent immigration reform bill mandated such sharing. Although the bill died in the Senate, the issue is likely to become a hot topic after the next presidential election. Until passage of some type of immigration bill, employers will have little incentive to take any action and have received practically no guidance on how to handle these letters. This may change in the near future, in part due to Congress' failure to address immigration reform and partly in response to the Department of Homeland Security's enforcement of current immigration laws. In June of 2006, the Department of Homeland Security ("DHS"), as part of its increased enforcement efforts, published for comment a proposed amendment to the regulation relating to the unlawful hiring or continued hiring of unauthorized aliens. Because of Congress' reform efforts, DHS had little incentive to finalize its proposed amendment. However, now that the immigration bill has died, some commentators believe that DHS will adopt its proposed amendment. DHS's proposed amendment will provide a "safe harbor" procedure for employers who receive no-match letters from the SSA or a similar letter from the DHS. If and when the DHS adopts the proposed regulations in their current format, employers will be required to take the following steps upon receipt of "no match" letters:[3] 1. Promptly after receiving a no match letter, a reasonable employer should check its records to make sure that there have been no typographical, transcription, or other clerical errors either in the employer's records or in its communications with SSA or DHS that could account for the alleged discrepancies. 2. If there is an error, the employer must correct its records and contact either SSA or DHS, within 14 days of receiving the no match letter, to confirm whether the employee's corrected information produces a match. If SSA or DHS subsequently verifies the employee's account number, the employer must make a record of the manner, date, and time of the verification. 3. If the employer's actions do not resolve the discrepancy, the employer must look to the employee for resolution and request the employee to confirm that the employer's records are correct. 4. If the information is correct, according to the employee, the employer should ask the employee to contact SSA or DHS to resolve the issue. This action must also occur within 14 days of receiving a no match letter. 5. Once the employee contacts SSA or DHS, the employer must contact SSA or DHS to close the matter, and confirm the employee's account number. If there is a verified match, the employer should make a record of the manner, date, and time of the verification. 6. If the above actions do not resolve the discrepancy, the employer has 60 days from the date of receiving a no match letter to complete a new Form I-9, but with these restrictions: a. Neither the employee's employment authorization nor his identity may be proved with any document containing a social security number or an alien number that was the subject of a "no-match" letter. b. The employee's identity may only be established with a document that has a photograph of the employee on it. c. Only a document that has a photograph of the employee on it can be used to establish both the employee's identity and his employment authorization at the same time. Depending upon your human resources' goals and level of risk aversion, you may or may not want to proactively adopt a similar policy. Such proactive adoption, however, is not without risk and many employers would be better served by continuing to strictly apply the steps recommended by the SSA in the instructions accompanying the "no-match" letter. If you have any questions about which approach would be best for your organization, please contact your attorney at The Key Firm.
[1] Washington Post, April 16, 2006. [2] 8 U.S.C. §1324a. [3] An employer who has complied with the safe harbor steps can "be certain that DHS will not find that the employer had constructive knowledge that the employee referred to in the letter was an unauthorized alien."71 Fed. Reg. 34281 (proposed June 14, 2006). 
|
