Department of Homeland Security Re-Releases No-Match Rules

(April 20, 2008) As you may know, the Department of Homeland Security recently re-released their new proposed rules regarding the steps an employer must take upon receipt of a social security no-match letter. The new rules remain virtually the same as the previous version that were originally slated to take effect last September. Those rules were held up in by a Federal Court which cited, among other concerns, that the new rules would have an inadvertent negative impact on a significant number of legal American workers.

The issuance of the new rules by DHS once again provides those in the business community an opportunity to comment for public record. Any comments will have to be submitted by Friday, April 25th. Businesses are strongly encouraged to submit comments to DHS by next Friday. Please feel free to use the model comments linked below. Directions for submitting comments are included.

Thanks in advance for your help.

Model Comments Letter (Word Document, insert your information)
Model Comments Letter (PDF Document, copy and paste into your word processor)
DHS Statement on Enforcement of No-Match Rules – December 2007

Despite the fact that a restraining order was issued on this, it appears that the Department of Homeland Security is still planning to enforce the no-match rules. Click here for the statement from the Department of Homeland Security Director Michael Chertoff.

Immigration Enforcement Rules Update – 9/4/07
Information from the National Restaurant Association

Late last Friday (August 31, 2007), a federal judge issued a temporary restraining order preventing the Social Security Administration from sending the planned batch of no match letters. This was in response to a lawsuit filed by AFL-CIO. A hearing is scheduled for October 1. We will get you any further information as we get it.

Also, members of the EWIC coalition are considering filing a separate suit on the no match rule that could strengthen the case and increase the chances of significantly delaying – if not scrapping – the proposed rule in its current form. There will be an EWIC meeting to decide the next step on Tuesday (9/4/07) afternoon. One question will be whether there are enough companies and associations willing to put up resources to finance the suit. Already one restaurant company has tentatively pledged $10,000 and some EWIC steering committee members have pledged from $5-10K as well.

If you are interested in learning more, please contact John Gay, Senior Vice President of Government Affairs and Public Policy at the National Restaurant Association, jgay@dineout.org, 202/331-5912.
New Federal Immigration Enforcement Rules
(Note: this information was passed on to us the last week of August. See update above for most current information.)
Over the coming weeks, the Social Security Administration will be sending out 140,000 no-match letters to employers nationwide. At the same time, US Immigration and Customs Enforcement (ICE) will be stepping up their enforcement measures to clamp down on undocumented workers. Initally, ICE will focus on employers who receive no-match letters for 10 or more employees or those who receive letters for employees that constitute 0.5% of their entire workforce. The average fine will increase to $1,000 for each illegal immigrant you hire.

Upon receipt of a letter, an employer must:
1. Within 30 days, check for clerical errors that may have been made when filling out the original paperwork and Form I-9.
2. If the discrepancy is not cleared up, the employer must notify the employee and re-verify the documents.
3. Should the discrepancy still exist, the employee will have up to 90 days after the initial receipt of the no-match letter to correct the situation. Should the problem not be solved, the employer must then terminate the employee**.
Employers who follow these steps will be given a legal “safe harbor” from being held responsible should an undocumented worker be discovered on their payroll. Employers ignoring these steps are subject to increased fines and penalties.

Also of note, the Basic Pilot program is being re-branded as “E-Verify”. All employers entering into federal contracting agreements with the government will be required to use E-Verify for all employees working on the federal contract.

Finally, the US Department of Labor will attempt to streamline the H-2B application process in an effort to make the seasonal visa program easier to use for all employers.

**Note: the alert indicates that the employer must terminate the employee if the SSN discrepancy is not solved within a specified time frame. That isn’t necessarily true in all circumstances. First, what the regulation offers is a “safe harbor” provision from the SSA “no match” letter being used as evidence of “constructive knowledge” of unauthorized employment if the employer follows the prescribed steps. It does not necessarily have to terminate the employee, but it runs a significant risk of “knowingly” employing/continuing to employ an unauthorized alien. Second, the employer has an alternative option of reverifying employment eligibility through another method, so long as it does not use the disputed SSN. Thus, the employer could have a situation in which the SSN discrepancy still exists after 90 days but the employer is independently able to confirm eligibility through one of the other available avenues/forms. In that case, the employer would not have to terminate the employee. Please call NMRA for the most current information on this issue.