Enforcement-laden DHS rule causes concern
among agricultural employers across the country
– Jeff Stone, Director of Government Relations – OAN
The Oregon Association of Nurseries, with the American Nursery & Landscape Association (ANLA), has been working diligently to pass an immigration bill that would provide enough willing and legal workers – through a guest worker program – for the nursery and agriculture industries. The two groups are working on proposals to realistically deal with the millions of undocumented workers already in the country and create an orderly and fair pathway for adjustment of their legal status. Unfortunately, the US Senate failed to pass comprehensive immigration reform. Agricultural employers, along with several other industries across the country, will find immigration law compliance more problematic.
Bush Administration issues final rule
On Friday, August 10, the Department of Homeland Security (DHS) plans for an aggressive regulatory program aimed at employers who receive a no-match letter from the Social Security Administration (SSA) or a letter regarding employment verification forms from DHS. The new rules were published in the Federal Register on August 15, 2007, and become effective on September 14, 2007.
SSA no-match letters – big changes needed on how to deal with them
Every year employers are required to file wage reports with the SSA, listing employee names and social security numbers (SSN). Of the 250 million wage reports received by the SSA, about four percent contain discrepancies regarding the employee's name or the corresponding SSN that do not match SSA records. When this occurs, the SSA sends out a "no-match" letter, typically in March or April of each year for the preceding calendar tax year.
There are many reasons an employer may receive a mismatch letter from the SSA, including transcription errors and name changes due to marriage that are not reported to the SSA. Employers should not assume a worker(s) identified in a mis-match letter is not authorized to work. The amended regulations specifically describe what steps employers should take upon receipt of a no-match letter:
- Verify within 30 days that the mismatch was not the result of a record-keeping error on the employer's part. If so, correct and communicate to the SSA the correct information.
- If not resolved in the first step, notify the employee and request that the employee confirm the accuracy of employment records within 90 days of the date of the receipt of the no-match letter. This may include the employee resolving the issue with SSA directly.
- If the information cannot be corrected within 90 days, the employer will have to complete a new I-9 form for the employee within 3 days (between the 91st and 93rd day from receipt of the No-Match letter).
- Complete the new I-9 form without using any document containing the questionable SSN, and instead using documentation presented by the employee that conforms to the I-9 document identity requirements and which includes a photograph of the employee.
- Attach the new I-9 form to the original I-9 and keep the I-9 documents in your records for the retention period required (3 years after date of hire, or 1 year after date of termination, whichever is longer).
- We recommend that you maintain your Form I-9 documents in a separate file from your individual employee personnel file.
Employers should follow this same procedure when a letter from DHS is received, stating that an employee's immigration or work authorization document is not valid.
What an employer cannot do is simply ignore the problem. If an employer does nothing to resolve the mismatch or doesn't act in good faith, the employer will be liable for employing an unauthorized worker, and the employer could face stiff penalties and sanctions.
The hammer is “constructive knowledge”
A substantial change to the regulatory environment is the use of “constructive knowledge” to determine that an employer knew certain facts and circumstances sufficient to know that their employee was not authorized to work in the United States.
Employers could be subject to this test if:
1. The employer receives a No-Match letter; or
2. The employer receives a Notice of Suspect Documents letter from DHS/ICE.
3. The employer simply ignores all communication– whether it is from the employees, authorized federal enforcement agents, or any other reasonable sources that could cast doubt on the validity of a worker’s legal status.
4. A pattern of intentionally circumventing the law by hiring “labor services” that may be reckless or demonstrate wanton disregard for legal consequences.
The use of constructive knowledge may have a significant “chill,” not only among agricultural employers, but other industries such as construction, hospitality and restaurants owners and operators. DHS has clearly shifted the burden of immigration enforcement on to the shoulders of the employer.
Fines issued by DHS can be hefty and also now may include a criminal charge. A detailed list of the sanction structure is located in the attached legal memo from Jordan Schrader, the OAN’s legal counsel.
Is there a “safe harbor”?
Employers are not left “out in the wind” in the face of the new regulatory environment. DHS does provide “safe harbor” for those employers who unknowingly hire unauthorized workers. The new regulations make clear that employers who receive a SSA mismatch letter or a Notice of Suspect Documents letter from DHS/ICE need to follow specific 'safe harbor' procedures outlined in the regulations. Failing to do so, means the employer will be considered to have had 'constructive knowledge' in the event the employees that are the subject of the letters were indeed unauthorized to work in the United States. Thus, it's important for every employer to respond to a SSA mismatch letter or DHS/ICE notice by following the specific steps outlined in the new regulations.
It's important to realize, however, that the 'safe harbor' provisions of the new regulations do not protect an employer from ICE enforcement activity and civil or criminal penalties if other evidence indicates the employer is employing unauthorized workers. For example, if a worker reports to ICE or other law enforcement authorities that he or she told their employer they entered the country illegally or were not authorized to work, then such testimony could be used to prove the employer had first hand information about the immigration status of his or her worker(s).
The Administration will not consider the receipt of a DHS/ICE Notice of Suspect Documents letter as evidence of constructive knowledge if the employer does the following:
a. The employer contacts the local DHS/ICE office in accordance with the written notice’s instructions to resolve the question(s) raised about a particular employee and their authorization to work. This must be completed within 30 days of receipt of the written notice.
b. Advise the employee of the receipt of the notice and request that they obtain proof of status. If you have a high confidence that the employee is authorized to work, then you should call ICE and have them verify.
c. If you are unable to verify status, you must complete a new I-9 form by the 93rd day of the initial notice – as if the employee in question is a new hire. Again, you may not accept any questioned document in the completion of the new I-9.
d. It is important that employers make sure that the same procedures are applied to all employees regardless of their national origin or other prohibited characteristics.
The good news for employers is that DHS/ICE does not receive the names or SSNs of No-Match recipients from the SSA. It is the view of OAN’s Government Relations staff that this shield may only be temporary and that agriculture will need to watch for additional rule making by the Administration. The information gathered by SSA may only be shared with DHS/ICE through the legal process.
Employers are not required to be document experts or hire document experts to verify the authenticity of documents presented by employees to establish their identity and employment authorization. It is important to note that electronic verification systems, such as the Employment Eligibility Verification Program (EEV) or the DHS program known as E-Verify, do not provide you “safe harbor” protections. Only the No-Match letter process provides this avenue.
Enforcement activity on the rise
DHS has placed a high priority on worksite enforcement. Arrests for criminal violations have increased from 24 in 1999 to a record 716 in 2006. There have been 742 criminal arrests since the beginning of 2007 (through July 31, 2007). In coming months, additional enforcement measures will be implemented. These include a new I-9 regulation reducing the number of acceptable documents to establish identity and eligibility for employment, regulations increasing civil money penalties for violations by approximately 25 percent, continued and increased use of criminal sanctions for knowingly employing unauthorized workers, and requiring all federal contractors or vendors to enroll in E-Verify, the Federal Electronic Employment Verification System.
The old SSA no-match letters will look like the old ones
It is important to note that SSA is not changing its procedures for issuing no-match letters, and SSA guidance on how to correct SSA records is unchanged. It is anticipated that SSA will send out approximately 8.6 million no-match letters to employers across the country for the 2006 tax year. DHS Secretary Michael Chertoff has indicated that SSA will likely send out about 15,000 no-match letters a week for the next several months. It is not known if the size of the operation will be a determining factor for the letters.
Employers should not assume that the mismatch is the result of any wrongdoing on the part of the employee. Likewise, an employer that takes adverse employment action against an employee simply because they received a No-Match letter or Notice of Suspect documents letter may, in fact, violate the law.
The Administration and agencies have a daunting task ahead of them. This no-match rule simply does not target agricultural employees; rather it spans the entire labor work pool as well as those who have name changes, clerical errors, and other factors that would affect one’s social security number.
Jeff Stone is the the OAN’s government relations director. He can be reached at (503) 682-5089 or at email@example.com.
Obviously, we urge you to seek the advice of the association and your own legal counsel as issues arise. Employers who suspect they have unauthorized employees in their workforce may wish to begin a process to re-verify the SSN of all employees. By doing so, an employer could minimize the business disruption when the employer needs to terminate employees who cannot present valid work authorization documents after the 90-day receipt of a no-match letter period expires.
For a copy of the final rule and additional information, go to www.ice.gov
The OAN will continue to work with our members, our national association, and congressional leaders to minimize the intrusive nature of this rule and continue to seek comprehensive immigration reform.