Immigration Compliance —Fiorenza

IN A development of significance for graphic arts companies utilizing foreign talent, the U.S. Immigration and Customs Enforcement recently amended its regulations relating to the unlawful hiring or continued employment of unauthorized aliens.

Specifically, the amended regulation describes the legal obligations of an employer that receives either 1) a “no-match letter” from the Social Security Administration (SSA) or 2) a letter regarding employment verification forms from the Department of Homeland Security (DHS).

An employer “no-match letter” (also known as an “Employer Correction Request”) is a written notice from the SSA that the name and social security account number submitted to the SSA for an employee does not match the SSA’s records.

The DHS letter is a notice that the immigration status or employment-authorization documentation presented by the employee in completing Form I-9 was not assigned to the employee, according to DHS records. Since Form I-9 is retained by the employer—as opposed to being filed with DHS, and is only made available to DHS investigators upon request—an employer will likely only receive this type of notification following an audit of its I-9 records.

Obligations Upon Receipt of No-Match Letter

Under the new regulation, when an employer receives a no-match letter from the SSA, it must check its records to determine whether it made some clerical error that caused the mismatch. If so, the employer must correct the error and inform the SSA of the accurate information. The employer must also verify with the SSA that the employee’s name and social security number, as corrected, match SSA records.

The employer then must make and retain a record of the “manner, date and time of such verification,” and then store it along with the employee’s Form I-9. The employer must complete these steps within 30 days of receiving the no-match letter.

If the employer determines that the discrepancy is not due to its error, the employer must “promptly request” that the employee confirm that the name and social security number in the employer’s records are correct. If the worker confirms that the records are correct, the employer must “promptly request” that the employee resolve the discrepancy with the SSA.

The employer must also advise the employee of the date that the employer received the no-match letter and advise him/her to resolve the discrepancy with the SSA within 90 days of that date.

Obligations Upon Receipt of DHS Letter

If the employer receives the letter from DHS, described above, the employer must contact the local DHS office (in accordance with the written notice’s instructions, if any) and attempt to resolve the question raised by DHS about the immigration status document or employment authorization document. The employer must complete this step within 30 days of receiving the written notice.

If the employer is unable to verify with DHS within 90 days of receiving the written notice that the immigration status document or employment authorization document is assigned to the employee, the employer must again verify the employee’s employment authorization and identity. In other words, the employer must complete a new Form I-9 for the employee, using the same procedures as if the employee were newly hired, except that the employer must not accept any document referenced in any written notice.

Ultimately, if the discrepancy referred to in the no-match or DHS letters is not resolved, the employer must either terminate the employee or risk the DHS citing the employer for “constructive knowledge” that the employee was not authorized to work in the United States.

“Constructive Knowledge” of Unauthorized Worker

There are severe civil and criminal penalties for employers under such circumstances. Civilly, it could be fined up to $2,200 for the first offense, from $2,200 to $5,500 for the second offense, and from $3,300 to $11,000 for all subsequent offenses. In addition, employers who “knowingly” hire or continue to employ unauthorized workers are barred from entering into federal contracts for one year.

On the criminal side, employers that engage in a “pattern or practice” of knowingly hiring or continuing to employ unauthorized workers may be prosecuted in criminal proceedings. In such cases, they can be fined not more than $3,000 for each unauthorized worker, imprisoned for more than six months, or both.

Legal Battle Over Enforcing the New Regulation

As you might expect, this new regulation has already led to significant controversy. Recently, the AFL-CIO and ACLU filed suit challenging the rule. These groups allege that because the final rule imposes liability on employers who fail to respond to a SSA or DHS letter, errors attributable to the government could threaten the jobs of U.S. citizens and other authorized workers.

As of this writing, a federal judge has issued a temporary restraining order preventing DHS or SSA from enforcing the rule, and employers are urged to monitor their affirmative obligations in this regard.PI

—Nicholas J. Fiorenza

About the Author
Nicholas J. Fiorenza is managing partner of the employment law firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., and long-time association counsel to the Printing Industries Alliance and its members. He is also president of Delacroix Consulting Group, the human resources consulting component of the law firm. For more information, visit www.ferrarafirm.com.