I 9 Compliance Handout

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I 9 Compliance Handout

  1. 1. 1 Avoiding Immigration Pitfalls: I-9 Compliance March 13, 2008 Presented by Ann Massey Badmus Our Agenda How to Complete the NEW I-9 Form How to Correct the Most Common I-9 Mistakes How to Conduct an Internal I-9 Audit How to Respond to ICE Raids and Audits Question and Answer
  2. 2. 2 I-9 General Rules Hire only those persons authorized to work in the United States Ask ALL new employees to show documents that establish both identity and work authorization Complete form I-9 for every new employee - regardless of nationality Look at the Facts Not the Faces Common Mistakes in Hiring Unequal treatment because of citizenship or immigration status Unequal treatment because of nationality, which includes place of birth, appearance, accent and language Asking for specific documents from employee, such as “Green Card” Verifying some people’s documents and not others Having a citizen-only hiring policy
  3. 3. 3 Employment Verification I-9 Form Must begin verification on first day of employment Must complete verification within three days of employment Section1 must be completed by employee – in full Common Mistake: Employee leaves a section blank. ICE has determined that leaving a portion blank is tantamount to the employee refusing to attest to having authorization to work. Section 2 must be completed by person viewing the documents. Common Mistakes: • Listing too many documents • Not listing the document title, issuing authority, document #, and expiration date • Having Employee complete Section 2 • Asking Employee for specific documents • Requiring Employee to show “Green Card” • Not listing date employment began • Not signing and dating Section 2
  4. 4. 4 If the document listed in List C has an expiration date, you must re-verify when the authorization document expires. Common Mistakes: * Not re-verifying * Re-verifying everyone, regardless of whether their documents expire * Not completing Section 3 in full when re-verifying Section 3 must be completed by person viewing the documents when re- verifying Common Mistakes: * Person completing not same person that viewed documents * Not listing name of document, document number and expiration date of document * Not signing Section 3 New Instructions for Completing Form I-9
  5. 5. 5 Instructions for Completing Form I-9, continued Revisions to I-9 Form Only valid version – (Rev. 06/05/07) as of December 26, 2007 I-9 Form Sections 1, 2, 3 remain the same Lists of accepted documents to verify identity and work eligibility has changed. Key Changes to I-9 Form
  6. 6. 6 Five documents removed: Certificate of U.S Citizenship (Form N-560 or N-562) Certificate of Naturalization (Form N-550 or N-570) Alien Registration Receipt Card (I-151) Unexpired Reentry Permit (Form I-327) Unexpired Refugee Travel Document (Form I-571) One document added: Unexpired Employment Authorization Document (I-765, I-688, I-688A, I-688B, I-766) List A Instructions Section Filling Out the Form I-9. Section 1. Employee. Employees are not required to provide SS# in Section 1(unless the employer participates in E-Verify). Photocopying and Retaining the Form I-9. Includes information about Electronically signing and retaining I-9 Form. List of Acceptable Documents List A: Document that establishes both identity and authorization to work List B & C: Must use both * List B establishes Identify * List C establishes authorization to work
  7. 7. 7 Examples of documents acceptable for List A Examples of documents acceptable for List A Examples of documents acceptable for List A
  8. 8. 8 Examples of documents acceptable for List A Examples of documents acceptable for List B Examples of documents acceptable for List C
  9. 9. 9 Examples of documents acceptable for List C Examples of documents acceptable for List C Examples of documents acceptable for List C
  10. 10. 10 I-9 Retention All current employees (unless exempt) must have I-9 forms on file. Retention date is determined at the time an employee is terminated: 3 years after the date of hire or 1 year after the date the employee’s employment is terminated, whichever is later. E-Verify Web-based Basic Pilot Employment Verification Program USCIS and Social Security Administration Voluntary participation I-9 Internal Audit Should be conducted annually Should be conducted by one not involved in completing Company’s I-9s May audit all Company I-9s or a random sampling Should ensure that all employees on payroll have an I-9
  11. 11. 11 Correcting Errors Found During an In-House I-9 Audit New I-9 form should not be substituted for incorrect, old I-9 I-9 may either be corrected, showing date of correction, or New amended I-9 completed and stapled to old incorrect I-9 How to Respond to an Audit Don’t waive your right to a three-day notice of the audit. Do not allow Agents to take original documents off-site. Separate I-9s from personnel files. Call an experienced immigration attorney immediately upon receipt of an audit notice and do not allow Agents to talk with employees before calling an attorney. New Developments in Enforcement “In fiscal year 2007, ICE made more than 4,900 arrests in connection with worksite enforcement investigations, including 863 involving criminal violations. That represents a 45-fold increase in criminal worksite arrests compared to fiscal year 2001. In addition, ICE obtained more than $31 million in criminal fines, restitution and civil judgments in fiscal year 2007 as a result of worksite related enforcement actions.” ICE News Release 2-8-08
  12. 12. 12 Texas Man Sentenced to Six Months for Harboring Illegal Aliens “ICE aggressively targets employers who use illegal alien labor as a business model. We will continue to investigate and bring criminal action against employers who egregiously violate the nation’s immigration laws.” ICE News Release 2-12-08 ICE Releases Final Arrest Numbers for Utah Workforce Enforcement Operation * ICE arrested a total of 57 illegal aliens during operation. * U.S. Dept. of Labor was on hand to ensure that those arrested were paid for work they had already performed. Company and H.R. Director Indicted * Company and its human resource director charged with harboring illegal aliens and encouraging or inducing workers to stay in U.S. illegally. * “These indictments show ICE’s commitment to fully investigating companies and their hiring managers who attempt to disregard our laws.” * “Employers who ignore their responsibilities and the law will be brought to justice” ICE News Release 2-8-2008
  13. 13. 13 ICE executes Federal Search Warrant in Van Nuys, California ICE agents executed a federal search warrant …at a Los Angeles-area computer printer cartridge manufacturing plant, arresting eight current and former company workers on criminal charges and another 130 employees on administrative immigration violations. How To Respond to an ICE Raid and Audit Ask to see the documents authorizing the agents to search the premises and employees Make a copy of the warrant, if one exists If no warrant, ICE agents will request permission to visit and interview employees. Ask about the purpose and scope of the inspection. Contact your immigration attorney immediately! Best Practices for I-9 Compliance Implement a robust compliance program Prepare for government audits and raids Develop a plan Communicate the plan Train key personnel on the plan Conduct Internal Audits and Third Party Audits
  14. 14. 14 Best Practices for I-9 Compliance Protect privileged materials including personnel records Implement policies and procedures to protect the company and employees Consult and retain counsel to evaluate your compliance plan and advise on specific courses of action Question and Answer Session "Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold." - USCIS spokeswoman Karen Kraushaar.
  15. 15. 15 Legal Notice Facts of individual situations differ The information provided here is general in nature and should not be relied upon for your specific case Consult with an experienced immigration attorney with regard to specific situations you encounter Thank You! Badmus Immigration Law Firm 12700 Park Central Drive Suite 1910 Dallas, Texas 75251 469-916-7900 Telephone 469-916-7901 Facsimile www.badmuslaw.com immigration@badmuslaw.com
  16. 16. WORKSITE COMPLIANCE RULES FOR EMPLOYERS ©Badmus Immigration Law Firm 12700 Park Central Drive, Suite 1910 Dallas, Texas 75251 Telephone 469-916-7900 Fax 469-916-7901 immigration@badmuslaw.com www.badmuslaw.com
  17. 17. Chapter One IMMIGRATION REFORM AND CONTROL ACT (IRCA) RULES To curtail the flow of illegal immigration into the United States, Congress enacted the Immigration Reform and Control Act of 1986, commonly referred to IRCA. IRCA sets forth two-pronged rules that require Employers to verify the employment eligibility of employees hired (verification rules) and prohibits Employers from discriminating against foreign-born employees (antidiscrimination rules). These rules are federal law and must be followed regardless of the state in which the Employer is located. Here is a brief overview of these rules with tips you can use at the end of this chapter. What Employers and Employees are covered by IRCA? All Employers must verify the employment authorization of its employees to work in the United States and are subject to penalties for non-compliance. The provisions of IRCA are fairly broad and cover anyone who employees another “for wages or other remuneration.” Therefore, anyone placed on payroll clearly falls under the regulations set forth in IRCA. The term “. . . or other remuneration” is also quite broad and includes salaries, wages, commissions or piece work activity. Are there any exemptions to the IRCA verification rules? All prospective employees are covered by IRCA verification rules except casual hires and independent contractors. But Employers must be clear as to what these terms mean and avoid the slippery slope of misclassifying employees for the purpose of gaining an exemption. A casual hire is limited to someone who performs sporadic, irregular or intermittent domestic employment. This exclusion is very narrow, applying to baby-sitters or others who perform occasional services inside a private home. But regularly scheduled maid service, child care, or yard service workers are not considered casual hires and work eligibility verification may be required. A true independent contractor is not covered by IRCA. Therefore, an Employer is not required to verify the work authorization of an independent contractor. But Employers must be careful not to misclassify their workers as Antidiscrimination rules only apply to Employers with four or more employees. An employee hired prior to November 7, 1986 is not subject to verification rules if the employee has been employed since that date continuously and without termination of employment.
  18. 18. independent contractors. To do so subjects the Employer to even more problems by facing additional penalties from the Internal Revenue Service and the state taxing authorities for failure to properly report and pay payroll taxes and to match Social Security taxes for those workers. The term “independent contractor” means someone who is truly independent, typically as defined by the Internal Revenue Service (IRS) rules. According to the IRS, true independent contractors have their own tools, determine what is to be done, in what sequence the jobs they have are to be done, and they perform such work for many different people. Therefore, to claim that an worker is an independent contractor, an Employer must be able to demonstrate that it only controls the result of the work done by the worker, but not the means and methods of accomplishing the result. Verification Rules What are the employment eligibility verification requirements for Employers? First, Employers must not knowingly hire or continue to employ any person who is not authorized to work in the United States. The first prohibited activity of an Employer under IRCA is the hiring of any one who is not authorized to work in the United States. The prohibition regarding illegal workers also extends to not only hiring, but to recruiting and referring for a fee someone who is not authorized to work in the United States. Therefore, most employment agencies that assume the responsibility of verifying that temporary workers can be employed are also covered by this prohibited activity. An Employer may be considered to "know" of an employee's lack of work authorization either by actual or constructive knowledge. Whether an Employer has constructive knowledge that an employee is unauthorized depends upon the totality of the circumstances. Some cases where the government has found an Employer to have constructive knowledge include, but are not limited to, situations where the Employer: Fails to complete or improperly completes the required verification paperwork. Even if a person is a true independent contractor, if the Employer knows that the independent contractor has no authorization to work in the United States, the Employer is still liable for the criminal and civil penalties provided for under IRCA. It is illegal to contract with someone whom the person knows is not allowed to work in the United States.
  19. 19. Fails to take reasonable steps after receiving information indicating that an alien may be unauthorized to work. Receives written notice from the Department of Homeland Security that a document is not legitimate or is assigned to another individual. Receives written notice from the Social Security Administration that the combination of name and social security number submitted for the employee does not match SSA records. (We will examine Social Security "no-match" letters in greater detail later in this guide). The second requirement under the IRCA is the I-9 verification procedure. Every Employer must verify the identity and employment eligibility of every new employee whether the employee is a citizen or alien. Under IRCA, all Employers are required to complete Form I-9 and examine the work authorization documents specified on Form I-9. Then, the Employer must attest that they have examined the documents supplied by the employee giving them the right to work in the United States, and that those documents appeared on their face to be genuine and related to that employee. Therefore, even if every person ever interviewed or employed by an Employer has the right to work in the United States, the Employer can still face substantial penalties for failing to complete the I-9 form properly. What are the key points to remember for completing the I-9 form? First and foremost, Employers must examine the completed Form I-9 and attest under penalty of perjury that the verification documents provided by the employee appear genuine and relate to the individual applicant. Form I-9 contains a set of directions for completing the form which must be followed. There is also a published manual In particular, the Employer should remember to: Instruct the employee to read Form I-9 and complete Part I. The employee should be asked to comply with the provision that asks them to supply documentation demonstrating that the employee is authorized to work in the United States Sign the Form I-9 under penalty of perjury, after the employee has completed Section 1 of Form I-9. Give the employee Form I-9 and direct him or her to the back of the Form I-9 which lists what documents are allowed to be supplied by the employee in order for the employee to establish that they have a right to work in the United States. The I-9 verification procedure must begin on the day the employee starts work and must be completed within three business days.
  20. 20. Examine the original verification documents. Do not simply accept the employee’s word that they have valid work authorization documents without examining those documents. The categories of documents from which the employee may choose to produce evidence that they have the right to work in the United States as indicated on the back of the I-9 form are as follows: “List A” documents establish both a worker’s identity and eligibility to work. These documents are: • U.S. Passport (unexpired or expired) • Unexpired foreign passport that contains a temporary I-551 stamp • Alien Registration Receipt Card or Permanent Resident Card (INS Form I- 551) • Unexpired Employment Authorization Card that contains a photograph (Form I-766, Form I-688, Form I-688A, Form I-688B) • For non-immigrants authorized to work for a specific Employer: an unexpired foreign passport with an Arrival-Departure Record, Form I-94, bearing an unexpired endorsement of the individual's nonimmigrant status. “List B” documents only establish identity, while “List C” documents only establish eligibility to work. Therefore, if the employee does not present you with a List A document, then s/he must present you with BOTH a List B and a List C document. “List B” documents establishing a worker’s identity are: • Driver's license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address – watch out for REAL ID • ID card issued by federal, state or local government agencies or entities provided it contains a photograph or information such as name, date of birth, Form I-9 contains a notice to the Employer that it is illegal for them to fail to actually examine the appropriate documents establishing the right of the employee to work in the United States. The Employer must further certify that the Employer has not only examined the documents presented by the employee but that those documents appear to be both genuine and that they apply to the person being hired.
  21. 21. sex, height, eye color, and address • School ID card with a photograph • Voter's registration card • U.S. Military card or draft record • Military dependent's ID card • U.S. Coast Guard Merchant Mariner Card • Native American tribal document • Driver's license issued by a Canadian government authority For persons under age 18 who are unable to present a document listed above: • School record or report card • Clinic, doctor, or hospital record • Day-care or nursery school record “List C” documents establishing a worker’s eligibility are: • U.S. Social Security card issued by the Social Security Administration (other than a card stating it is not valid for employment or valid only with INS work authorization) • Certification of Birth Abroad issued by the Department of State (Form FS- 545 or Form DS-1350) • Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal • Native American tribal document • U.S. Citizen ID Card (Form I-197) • ID Card for use of Resident Citizen in the United States (Form I-179) • Unexpired employment authorization document issued by the Department of Homeland Security (other than those listed under List A), including (1) a Form I-94 identifying the holder as an asylee (by stating "asylum", "asylee" or appropriate provision of law), or (2) other documentation issued by DHS (or the former Immigration and Naturalization Service (INS)) that identifies the holder as an asylee, lawful permanent resident, refugee (except for the Form I- 94 identifying the holder as a refugee, which is considered a receipt only), or other status authorized to work in the United States incident to status.
  22. 22. What if the employee has only a temporary work authorization, such as a three-year H1B approval or a one-year employment authorization document (EAD) card? It is important to remember that re-verification of work authorization is only necessary if the employee notes an expiration date of work authorization in Section 1 of the Form I-9. If re-verification (i.e. asking the employee to establish employment eligibility at a later date) is necessary, the Employer should have a tracking system to re-verify the employment authorization for employees who only have temporary authorization to work. This will also help ensure that the company’s I-9 records remain in compliance. Also, keep in mind that the Employer cannot require the employee to present any specific document upon re-verification. It is still the employee's choice which valid documents to present from those that are listed on the I-9 form. Should an Employer require an applicant to complete the I-9 form before hire? No, Employer should not ask an applicant to complete an I-9 form before offering employment to the applicant. The I-9 form contains certain information in Section I that could be used as evidence against an Employer in a national origin or racial discrimination claim. How long must an Employer keep I-9 records? An Employer must retain I-9 records for at least three years from the employee’s date of hire or for one year after the employment terminates, whichever occurs later. For instance, if an employee is hired and leaves after only two months of employment, you will keep the I-9 records for 3 years after the initial hire date. If an employee is hired and works for you for 12 years, then you will keep the records for an additional year after the employee leaves your employ, for a total of 13 years. I-9 records should be maintained by the Employer in a separate “I-9” file, apart from other personnel records. I-9 forms for current employees should be kept in one file and I-9 records for employees no longer employed by the company should be kept in a separate file. The files pertaining to persons no longer employed should be examined at least monthly and removed once the period of time to maintain the records has past. Why must an Employer keep these records? There is no need to re-verify based solely upon driver's license, permanent resident card, or passport expiration.
  23. 23. The law requires that an Employer prepare an I-9 form for all its employees and keep records of the I-9 process for the term set forth above. The law also provides stiff penalties for those who fail to comply. What does “’knowing’ the alien is an unauthorized alien” mean for the purposes of the law? The term knowing includes having actual or constructive knowledge. Constructive knowledge is knowledge that may fairly be inferred through certain facts and circumstances that would lead a reasonable person to know about the worker's employment authorization or lack thereof. Examples of situations where the Employer may, depending on the totality of relevant circumstances, have constructive knowledge that an employee is an unauthorized alien include, but are not limited to, situations where the Employer: (i) Fails to complete or improperly completes the Employment Eligibility Verification, Form I–9; (ii) Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf; and (iii) Fails to take reasonable steps after receiving information indicating that the employee may be an alien who is not employment authorized, such as— (A) An employee's request that the Employer file a labor certification or employment-based visa petition on behalf of the employee; (B) Written notice to the Employer from the Social Security Administration reporting earnings on a Form W–2 that employees' names and corresponding social security account numbers fail to match Social Security Administration records (see Employer Alert later in this chapter); or (C) Written notice to the Employer from the Department of Homeland Security that the immigration status document or employment authorization document presented or referenced by the employee in completing Form I–9 is assigned to another person, or that there is no agency record that the document has been assigned to any person. What are the penalties for knowingly hiring or continuing to employ an unauthorized alien worker? An Employer found to have knowingly hired, recruited or referred for a fee, or continued to employ, an unauthorized alien for employment in the United States shall be subject to an order to cease and desist from the unlawful behavior and to pay a civil fine. An Employer can be fined:
  24. 24. $375 - $3,200 per unauthorized alien with respect to the first offense. $3,200 - $6,500 per unauthorized alien for a second offense. $4,300 - $16,000 per unauthorized alien for each third or subsequent offense. What other penalties exist relating to the verification rules? The IRCA imposes numerous other civil and criminal penalties for Employers who run afoul of the verification rules: Failure to Comply with Form I-9 Requirements Employers who fail to properly complete, retain, and/or present Forms I-9 for inspection by ICE can incur civil penalties from $110 to $1,100 per employee whose Form I-9 is not properly completed, retained, and/or presented. To determine the amount of the civil penalty, the government will consider the size of the business of the Employer being charged; the good faith of the Employer; the seriousness of the violation; whether or not the individual was an unauthorized alien; and any history of previous violations. Requiring Indemnification from the Employee Employers who require a bond or indemnity from an employee against liability under the Employer sanctions laws may be fined up to $1,100 for each and ordered to reimburse the person required to pay the indemnity. If that person cannot be located, payment is made to the U.S. Treasury. Engaging in a Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens Employers convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States may be fined up to $3,000 per unauthorized employee and/or face up to 6 months of imprisonment. Engaging in Fraud or False Statements, or Otherwise Misusing Visas, Immigration Permits, and Identity Documents Persons who knowingly use fraudulent identification documents, identity documents that were issued to persons other than themselves, or false attestations for the purpose of satisfying the employment eligibility verification requirements, may be fined and/or imprisoned for up to 5 years. These penalties also apply to contractors, if the Employer knows that they are unauthorized to work.
  25. 25. How will the government know of a violation? Big Brother, especially the Department of Homeland Security (DHS), is watching all of us all of the time now. The primary enforcement arm of the DHS for Employer verification rules is the Immigration and Customs Enforcement agency (ICE). In addition, many federal and state agencies, such as the Department of Labor and Social Security Administration, cooperate with ICE to provide information and enforcement resources. Keep in mind that whistle blowers often alert the government to perceived Employer wrongdoing. Anti-Discrimination Rules What are the anti-discrimination rules for Employers? When IRCA was under consideration by Congress, concern was expressed the Employers would attempt to avoid the penalties for hiring unauthorized aliens by simply refusing to hire anyone who did not look or sound "American." To address these concerns, IRCA identifies certain unfair employment practices that Employers must avoid: (1) Citizenship status discrimination - an Employer cannot fire or refuse to hire an individual based solely upon his or her citizenship status, or because of the individual's type of work authorization. For example, in general, an Employer cannot refuse to hire an individual because he or she is a permanent resident, rather than a U.S. citizen. (2) National origin discrimination - an Employer cannot treat an applicant or an employee differently because of that individual's country of origin, ancestry, native language, or accent. For example, in general, an Employer cannot refuse to hire an individual because he or she is speaks English with a Spanish accent. (3) Retaliation - an Employer cannot intimidate or retaliate against any employee who makes a complaint about immigration-related discrimination. (4) Document abuse - an Employer cannot subject applicants or employees to more rigorous verification procedures than required by the I-9 verification rules. Specifically, it is an unfair employment practice for an Employer to request more or In addition to the civil and criminal penalties under the IRCA, the government may charge Employers or individuals with criminal violations of other federal laws which can result in imprisonment for up to 10 years.
  26. 26. different documents than are required or to refuse to accept compliant documents that appear to be reasonably genuine. A more detailed discussion regarding document abuse is found below. How can an Employer avoid charges of document abuse? The basic rule for Employers to follow to avoid any charge of unfair immigration-related employment practices is to treat all applicants and employees as if they were U.S. citizens. To avoid charges of document abuse, Employers should: Not request a specific I-9 document, e.g. a green card, to verify employment eligibility. Not request a specific I-9 document with the intent of discriminating against an applicant. Not refuse to accept an unexpired I-9 document merely because it bears an expiration date. Accept whatever I-9 document the employee presents, if the document is compliant and appears to be genuine. How can an Employer avoid charges of citizenship status or national origin discrimination? The basic rule for Employers to follow to avoid any charge of unfair immigration-related employment practices is to treat all applicants and employees as if they were U.S. citizens. To avoid charges of citizenship status or national origin discrimination, Employers should: Not limit job openings to U.S. citizens (no "citizens only" advertisements) unless U.S. Citizenship is required by law, regulation, court order, or government contract. Not favor a U.S. citizen over another protected worker unless the citizen application is equally qualified over the other applicant. Not discriminate against an individual on the basis of citizenship status, national origin, accent, or cultural characteristics. Not require English proficiency for jobs that do not reasonably require it. Are all applicants or employees protected by IRCA anti-discrimination rules? For claims of citizenship status or national origin discrimination or document abuse, IRCA protects individuals who are citizens or nationals of the United States, aliens lawfully admitted for permanent or temporary residence, refugees, and asylees. For claims of retaliation, IRCA protects all individuals.
  27. 27. What government agency enforces the anti-discrimination rules? IRCA created the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) under the arm of the U.S. Department of Justice to enforce the anti-discrimination rules. The OSC investigates and prosecutes claims of citizenship status discrimination, national origin discrimination, document abuse and retaliation. However, the OSC's jurisdiction is limited to citizenship status discrimination claims against Employers with four or more employees and to national original discrimination charges against Employers with four to fifteen employees. The OSC refers national origin discrimination charges against Employer with greater than 15 employees to the Equal Employment Opportunity Commission (EEOC) or an appropriate state human rights commission. The OSC also collaborates with various other agencies to address immigration discrimination concerns. These agencies include the Social Security Administration, the U.S. Department of Labor, the U.S. Department of Health and Human Services, and the U.S. Department of Homeland Security. What are the IRCA penalties relating to the anti-discrimination rules? If an OSC or EEOC investigation reveals employment discrimination covered by the Immigration and Nationality Act, the Employer will be ordered to cease the prohibited practice and may be ordered to take one or more of the following steps: Hire or reinstate, with or without back pay, individuals directly injured by the discrimination; Lift any restrictions on an employee’s assignments, work shifts, or movements; Post notices to employees about their rights and about Employers’ obligations; Educate all personnel involved in hiring and in complying with the Employer sanctions and anti-discrimination laws; Remove a false performance review or false warning from an employee’s personnel file. Pay civil monetary penalties of $375 - $2,200 per individual discriminated against for the first offense, $3,200 - $6,500 per individual discriminated against for the second offense, $4,300 - $16,000 per individual discriminated against for subsequent offenses. Pay fines from $110 to $1100 for each individual determined to have suffered from document abuse. Pay the individual's attorneys fees
  28. 28. May an unauthorized worker file a discrimination claim against an Employer? Yes, the EEOC will accept and prosecute discrimination claims from any worker regardless of their immigration status. Even workers who are unauthorized to work or are undocumented may file claims with the EEOC and other federal agencies which administer labor laws. Employers must be mindful of this fact in their I-9 processing and avoid overzealous verification procedures which may give rise to discrimination charges or other labor law violations.
  29. 29. HOT TIP #1 Pitfalls to Avoid on the I-9 Form The Employer and/or employee fails to sign and date the I-9 forms where indicated on the form. The employee fails to complete section 1 of the I-9 Form on the first date of work. The Employer does not examine the I-9 documents and fails to complete section 2 of the I-9 form with three business days of hire. The Employer leaves the start date for work blank in the "certification" block of section 2. The employee does not mark one of the three blocks in section 1 regarding his or her status or fails to provide the necessary information for the second and third blocks. The employee must indicate whether he is a U.S. citizen, permanent resident, or otherwise authorized to be employed. The Employer forgets to track the expiration date of work authorization and does not re-verify an employee's employment authorization on or before the expiration date listed on the I-9 form. The Employer over-documents and lists too many documents in section 2. This could lead to a discrimination charge against the Employer. The Employer looks at photocopies rather than original verification documents. The employee must present original documents and the Employer should never accept photocopies of documents for verification. The Employer fails to match the employee's verification documents - the Employer should look for a match and consistency in the employee's name and date of birth on the documents. The Employer fails to consistently apply its photocopying policy. The law does not require Employer to make copies of verification documents; however, if the Employer does make copies, it must make copies for all employees, not just some. And, any copies of verification documents must be kept with the I-9 form and no where else. The Employer representative who sees the documents is the same as the one who signs the form. The Employer representative who reviews the documents must also sign the I-9 form.
  30. 30. HOT TIP #2 Employer Alert Social Security No-Match Regulations: To Know or Not to Know? As you may know, for years the Social Security Administration (SSA) has sent "no-match" or “mismatch” letters to Employers if the name and Social Security information reported by a worker on a W-2 form did not match up with the information contained in the SSA databases. According to the SSA, the "no match" letters were not necessarily considered reason to believe that an employee did not have permission to work in the U.S., and Employers who received the "no-match" letters were not required to take any action. Usually the employee would also receive a letter at home, and the burden would be upon the employee to clear up the typographical or reporting error that might have led to the mismatch. A new regulation from the Department of Homeland Security (DHS) would now have the DHS sending out mismatch or no-match letters. Under this new regulation, effective September 14, 2007, the Employer would be required to proactively respond to the Employer Correction Request (“no- match”) letter and work to clear up the discrepancy within 90 days or face penalties from the government. The SSA has letters to an estimated 140,000 Employers, affecting an estimated 8,000,000 workers on hold pending the outcome of the court proceedings over this new regulation. Currently, the DHS has withdrawn this proposed regulation because of lawsuits filed in federal court. However, the government intends to re- present these regulations in the future. Therefore, until there is a final decision on whether or not the new DHS rule is legal, the government is blocked from implementing the new rule and its Employer penalties. However, it is important for Employers to be aware of this rule which may eventually be implemented. According to these new no-match regulations, an Employer who receives written notice from the Social Security Administration that the provided name and social security number do not match (a “mismatch” or “no match” letter) will have constructive knowledge that the employee is not authorized to work unless the Employer takes certain safe harbor actions.
  31. 31. What will happen if the Employer receives a no-match letter? If the rule is found legal and is implemented by the DHS, the Employer will have to carefully follow a prescribed course of action in response to a no- match letter in order to avoid having the DHS use the no-match as a basis for finding that the Employer had constructive knowledge that the employee was an alien not authorized to work in the United States. What can the Employer do to protect themselves in the event they receive such a letter? The rule creates a “safe harbor” for Employers if they follow the prescribed sequence of “reasonable” steps and comply with the prescribed actions. If the new rule is implemented, the following proactive process of “reasonable steps” on the part of Employers will be required upon receipt of a mismatch or no-match letter from either the DHS or SSA: (I) A “reasonable” Employer checks its records promptly after receiving a no-match letter to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in the Employer's records, or in its communication to the SSA or DHS. If there is such an error, the Employer corrects its records, informs the relevant agencies; verifies with the relevant agency that the information in the Employer's files matches the agency's records; and makes a record of the manner, date, and time of the verification. These steps must occur within 30 days of receipt of the no- match letter. (II) If such actions do not resolve the discrepancy, a reasonable Employer would promptly request that the employee confirm that the Employer's records are correct. If they are not correct, the Employer would take the actions needed to correct them, inform the relevant agencies (in accordance with the letter's instructions, if any), and verify the corrected records with the relevant agency. If the records are correct according to the employee, the reasonable Employer would ask the employee to pursue the matter personally with the relevant agency, such as by visiting a local SSA office and bringing original documents or certified copies to prove age, identity, citizenship or alien status, and other relevant documents, such as proof of a name change. These steps must occur within 30 days of receipt of the no- match letter.
  32. 32. NOTE: the government will only consider a discrepancy to be resolved if the Employer goes through the final step of verifying with the SSA or DHS, as the case may be, that the employee's name matches in SSA's records the number assigned to that name, or, with respect to DHS letters, verifies the authorization with DHS that DHS records indicate that the immigration status document or employment authorization document was assigned to the employee. Employers may verify a SSN with SSA by telephoning toll-free 1- 800-772-6270, weekdays from 7 a.m. to 7 p.m. EST. For information on SSA's online verification procedure, see http://www.ssa.gov/Employer/ssnv.htm. Employers should make a record of the manner, date, and time of any such verification, as the SSA may not provide any documentation. What can the Employer do if they haven’t been able to resolve the discrepancy with the employee within 90 days? The regulation describes a verification procedure that the Employer may follow if the discrepancy is not resolved within ninety days of receipt of the no- match letter. This procedure would verify (or fail to verify) the employee's identity and work authorization. If the described procedure is completed, and the employee is verified, then even if the employee is in fact not authorized to work in the United States, the Employer will not be considered to have constructive knowledge of that fact based on receipt of the no-match letter. This final rule, however, will not provide a safe harbor for Employers that for some other reason have actual or constructive knowledge that they are employing an alien not authorized to work in the United States. If within 90 days the discrepancy referred to in the no-match letter is not resolved, and if the employee's identity and work authorization cannot be verified using a reasonable verification procedure, such as that described in this regulation, then the Employer must choose between: (1) Terminating the employment of the employee, or (2) Facing the risk that DHS may find that the Employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, violated Section 274A(a)(2) of the IRCA rules. This finding could result in stiff penalties being imposed by the DHS as described previously in this chapter. What is the verification procedure required if the Employer hasn't been able to resolve the discrepancy with the employee within 90 days? The procedure to verify the employee's identity and work authorization described in the rule involves the Employer's and employee's completing a new
  33. 33. Form I-9, Employment Eligibility Verification Form, using the same procedures as if the employee were newly hired. Under the regulation, both Section 1 (``Employee Information and Verification'') and Section 2 (``Employer Review and Verification'') would need to be completed within ninety-three days of receipt of the no-match letter. Therefore, if an Employer and employee tried to resolve the discrepancy described in the no-match letter for the full ninety days provided for in the regulation, they have an additional three days to complete a new Form I-9. (Under current regulations, three days are provided for the completion of the form after a new hire.) What is the timing of Employer actions under the new rule to create a “safe harbor”? Timing of Employer Actions Under New No-Match Rules Action Rule Employer receives letter from SSA or DHS indicating mismatch of employee, name and Social Security number Day 0 Employer checks own records, makes any necessary corrections of errors, and verifies corrections with SSA or DHS 0 to 30 days If necessary, Employer notifies the employee and asks employee to assist in the correction of the record. 0 to 90 days If necessary, Employer corrects its own records and verifies correction with SSA or DHS 0 to 90 days If necessary, Employer performs special I-9 verification procedure. 90 to 90 days Should an Employer implement these procedures now to comply with the rules? As of this writing, the rules are not official because of the court order barring their implementation. Employers should consult with an immigration attorney for a complete review and analysis of their employment verification procedures before implementing these no-match rule procedures.
  34. 34. Appendix A I-9 Form
  35. 35. Department of Homeland Security U.S. Citizenship and Immigration Services Form I-9, Employment Eligibility Verification Anti-Discrimination Notice. It is illegal to discriminate against any individual (other than an alien not authorized to work in the U.S.) in hiring, discharging, or recruiting or referring for a fee because of that individual's national origin or citizenship status. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire an individual because the documents presented have a future expiration date may also constitute illegal discrimination. All employees, citizens and noncitizens, hired after November 6, 1986 and working in the United States must complete a Form I-9. OMB No. 1615-0047; Expires 06/30/08 Preparer/Translator Certification. The Preparer/Translator Certification must be completed if Section 1 is prepared by a person other than the employee. A preparer/translator may be used only when the employee is unable to complete Section 1 on his/her own. However, the employee must still sign Section 1 personally. Form I-9 (Rev. 06/05/07) N Please read all instructions carefully before completing this form. Instructions When Should the Form I-9 Be Used? What Is the Purpose of This Form? The purpose of this form is to document that each new employee (both citizen and non-citizen) hired after November 6, 1986 is authorized to work in the United States. Section 2, Employer: For the purpose of completing this form, the term "employer" means all employers including those recruiters and referrers for a fee who are agricultural associations, agricultural employers or farm labor contractors. Filling Out the Form I-9 document(s) within three business days, they must present a receipt for the application of the document(s) within three business days and the actual document(s) within ninety (90) days. However, if employers hire individuals for a duration of less than three business days, Section 2 must be completed at the time employment begins. Employers must record: Section 1, Employee: This part of the form must be completed at the time of hire, which is the actual beginning of employment. Providing the Social Security number is voluntary, except for employees hired by employers participating in the USCIS Electronic Employment Eligibility Verification Program (E-Verify). The employer is responsible for ensuring that Section 1 is timely and properly completed. 1. Document title; 2. Issuing authority; 3. Document number; 4. Expiration date, if any; and 5. The date employment begins. Employers must sign and date the certification. Employees must present original documents. Employers may, but are not required to, photocopy the document(s) presented. These photocopies may only be used for the verification process and must be retained with the Form I-9. However, employers are still responsible for completing and retaining the Form I-9. Employers must complete Section 2 by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins. If employees are authorized to work, but are unable to present the required Section 3, Updating and Reverification: Employers must complete Section 3 when updating and/or reverifying the Form I-9. Employers must reverify employment eligibility of their employees on or before the expiration date recorded in Section 1. Employers CANNOT specify which document(s) they will accept from an employee. B. If an employee is rehired within three (3) years of the date this form was originally completed and the employee is still eligible to be employed on the same basis as previously indicated on this form (updating), complete Block B and the signature block. C. If an employee is rehired within three (3) years of the date this form was originally completed and the employee's work authorization has expired or if a current employee's work authorization is about to expire (reverification), complete Block B and: A. If an employee's name has changed at the time this form is being updated/reverified, complete Block A. 1. Examine any document that reflects that the employee is authorized to work in the U.S. (see List A or C); 2. Record the document title, document number and expiration date (if any) in Block C, and 3. Complete the signature block.
  36. 36. EMPLOYERS MUST RETAIN COMPLETED FORM I-9 PLEASE DO NOT MAIL COMPLETED FORM I-9 TO ICE OR USCIS Form I-9 (Rev. 06/05/07) N Page 2 To order USCIS forms, call our toll-free number at 1-800-870- 3676. Individuals can also get USCIS forms and information on immigration laws, regulations and procedures by telephoning our National Customer Service Center at 1-800- 375-5283 or visiting our internet website at www.uscis.gov. USCIS Forms and Information What Is the Filing Fee? There is no associated filing fee for completing the Form I-9. This form is not filed with USCIS or any government agency. The Form I-9 must be retained by the employer and made available for inspection by U.S. Government officials as specified in the Privacy Act Notice below. The authority for collecting this information is the Immigration Reform and Control Act of 1986, Pub. L. 99-603 (8 USC 1324a). Privacy Act Notice This information is for employers to verify the eligibility of individuals for employment to preclude the unlawful hiring, or recruiting or referring for a fee, of aliens who are not authorized to work in the United States. This information will be used by employers as a record of their basis for determining eligibility of an employee to work in the United States. The form will be kept by the employer and made available for inspection by officials of U.S. Immigration and Customs Enforcement, Department of Labor and Office of Special Counsel for Immigration Related Unfair Employment Practices. Submission of the information required in this form is voluntary. However, an individual may not begin employment unless this form is completed, since employers are subject to civil or criminal penalties if they do not comply with the Immigration Reform and Control Act of 1986. We try to create forms and instructions that are accurate, can be easily understood and which impose the least possible burden on you to provide us with information. Often this is difficult because some immigration laws are very complex. Accordingly, the reporting burden for this collection of information is computed as follows: 1) learning about this form, and completing the form, 9 minutes; 2) assembling and filing (recordkeeping) the form, 3 minutes, for an average of 12 minutes per response. If you have comments regarding the accuracy of this burden estimate, or suggestions for making this form simpler, you can write to: U.S. Citizenship and Immigration Services, Regulatory Management Division, 111 Massachusetts Avenue, N.W., 3rd Floor, Suite 3008, Washington, DC 20529. OMB No. 1615-0047. Paperwork Reduction Act A blank Form I-9 may be reproduced, provided both sides are copied. The Instructions must be available to all employees completing this form. Employers must retain completed Forms I-9 for three (3) years after the date of hire or one (1) year after the date employment ends, whichever is later. Photocopying and Retaining the Form I-9 The Form I-9 may be signed and retained electronically, as authorized in Department of Homeland Security regulations at 8 CFR 274a.2.§
  37. 37. Department of Homeland Security U.S. Citizenship and Immigration Services Form I-9, Employment Eligibility Verification OMB No. 1615-0047; Expires 06/30/08 Please read instructions carefully before completing this form. The instructions must be available during completion of this form. ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire an individual because the documents have a future expiration date may also constitute illegal discrimination. Section 1. Employee Information and Verification. To be completed and signed by employee at the time employment begins. Print Name: Last First Middle Initial Maiden Name Address (Street Name and Number) Apt. # Date of Birth (month/day/year) StateCity Zip Code Social Security # A lawful permanent resident (Alien #) A A citizen or national of the United StatesI am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form. An alien authorized to work until (Alien # or Admission #) Employee's Signature Date (month/day/year) Preparer and/or Translator Certification. (To be completed and signed if Section 1 is prepared by a person other than the employee.) I attest, under penalty of perjury, that I have assisted in the completion of this form and that to the best of my knowledge the information is true and correct. Address (Street Name and Number, City, State, Zip Code) Print NamePreparer's/Translator's Signature Date (month/day/year) Section 2. Employer Review and Verification. To be completed and signed by employer. Examine one document from List A OR examine one document from List B and one from List C, as listed on the reverse of this form, and record the title, number and expiration date, if any, of the document(s). ANDList B List CORList A Document title: Issuing authority: Document #: Expiration Date (if any): Document #: Expiration Date (if any): and that to the best of my knowledge the employee is eligible to work in the United States. (State(month/day/year) employment agencies may omit the date the employee began employment.) CERTIFICATION - I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment on Print Name TitleSignature of Employer or Authorized Representative Date (month/day/year)Business or Organization Name and Address (Street Name and Number, City, State, Zip Code) B. Date of Rehire (month/day/year) (if applicable)A. New Name (if applicable) C. If employee's previous grant of work authorization has expired, provide the information below for the document that establishes current employment eligibility. Document #: Expiration Date (if any):Document Title: Section 3. Updating and Reverification. To be completed and signed by employer. l attest, under penalty of perjury, that to the best of my knowledge, this employee is eligible to work in the United States, and if the employee presented document(s), the document(s) l have examined appear to be genuine and to relate to the individual. Date (month/day/year)Signature of Employer or Authorized Representative Form I-9 (Rev. 06/05/07) N I attest, under penalty of perjury, that I am (check one of the following):
  38. 38. For persons under age 18 who are unable to present a document listed above: LISTS OF ACCEPTABLE DOCUMENTS LIST A LIST B LIST C 2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551) 7. Unexpired employment authorization document issued by DHS (other than those listed under List A) 1. Driver's license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address 1. U.S. Social Security card issued by the Social Security Administration (other than a card stating it is not valid for employment) 9. Driver's license issued by a Canadian government authority 1. U.S. Passport (unexpired or expired) 2. Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350) 3. An unexpired foreign passport with a temporary I-551 stamp 4. An unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, I-688B) 3. Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal 3. School ID card with a photograph 5. An unexpired foreign passport with an unexpired Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, if that status authorizes the alien to work for the employer 6. Military dependent's ID card 4. Native American tribal document 7. U.S. Coast Guard Merchant Mariner Card 5. U.S. Citizen ID Card (Form I-197) 8. Native American tribal document 6. ID Card for use of Resident Citizen in the United States (Form I-179) 10. School record or report card 11. Clinic, doctor or hospital record 12. Day-care or nursery school record Illustrations of many of these documents appear in Part 8 of the Handbook for Employers (M-274) 2. ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address Form I-9 (Rev. 06/05/07) N Page 2 4. Voter's registration card 5. U.S. Military card or draft record Documents that Establish Both Identity and Employment Eligibility Documents that Establish Identity Documents that Establish Employment Eligibility OR AND
  39. 39. Appendix B Social Security No-Match Regulation and Proposed No-Match Letter Samples 27
  40. 40. 45612 Federal Register / Vol. 72, No. 157 / Wednesday, August 15, 2007 / Rules and Regulations regulations or forms unrelated to or not addressed by the proposed rule, changes in procedures of agencies other than DHS, or resolution of other issues were not within the scope of the rulemaking or the authority of DHS, and are not addressed in this final rule. The comments frequently repeated specific issues (including specific text). Approximately 4,800 comments in several mass mailings were received. Several organizations also submitted identical or nearly identical comments. At the request of a broad-based coalition of national business and trade associations, DHS met with representatives of the organization and its constituent organizations on June 20, 2006. A summary of that meeting including a list of attendees has been placed on the docket for this rulemaking. Each comment received was reviewed and considered in the preparation of this final rule. This final rule addresses the comments by issue rather than by referring to specific commenters or comments. All of the comments received electronically or on paper may be reviewed at the United States Government’s electronic docket system, www.regulations.gov, under docket number ICEB–2006–0004. B. The Issue Presented Employers annually send the Social Security Administration (SSA) millions of earnings reports (W–2 Forms) in which the combination of employee name and social security number (SSN) does not match SSA records. In some of these cases, SSA sends a letter, such as an ‘‘Employer Correction Request’’, that informs the employer of the mismatch. The letter is commonly referred to as an employer ‘‘no-match letter.’’ There can be many causes for a no-match, including clerical error and name changes. One potential cause may be the submission of information for an alien who is not authorized to work in the United States and who may be using a false SSN or a SSN assigned to someone else. Such a letter may be one indicator to an employer that one of its employees may be an unauthorized alien. U.S. Immigration and Customs Enforcement (ICE) sends a similar letter (currently called a ‘‘Notice of Suspect Documents’’) after it has inspected an employer’s Employment Eligibility Verification forms (Forms I–9) during an investigation audit and after unsuccessfully attempting to confirm, in agency records, that an immigration status document or employment authorization document presented or referenced by the employee in completing the Form I–9 was assigned to that person. (After a Form I–9 is completed by an employer and employee, it is retained by the employer and made available to DHS investigators on request, such as during an audit.) This regulation describes an employer’s current obligations under immigration laws, and its options for avoiding liability, after receiving such a letter from either SSA or DHS. The regulation specifies step by step actions that can be taken by the employer that will be considered by DHS to be a reasonable response to receiving a no- match letter—a response that will eliminate the possibility that the no- match letter can be used as any part of an allegation that an employer had constructive knowledge that it was employing an alien not authorized to work in the United States, in violation of section 274A(a)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. 1324a(a)(2) . This provision of the INA states: It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment. [Emphasis added.] Both regulation and case law support the view that an employer can be in violation of section 274A(a)(2), 8 U.S.C. 1324a(a)(2) by having constructive rather than actual knowledge that an employee is unauthorized to work. A definition of ‘‘knowing’’ first appeared in the regulations on June 25, 1990 at 8 CFR 274a.1(l)(1). See 55 FR 25,928. That definition stated: The term ‘‘knowing’’ includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. As noted in the preamble to the original regulation, that definition, which is essentially the same as the definition adopted in this rule, is consistent with the Ninth Circuit’s holding in Mester Mfg. Co. v. INS, 879 F.2d 561, 567 (9th Cir. 1989) (holding that when an employer who received information that some employees were suspected of having presented a false document to show work authorization, such employer had constructive knowledge of their unauthorized status when the employer failed to make any inquiries or take appropriate corrective action). The court cited its previous opinion explaining ‘‘deliberate failure to investigate suspicious circumstances imputes knowledge.’’ Id. at 567 (citing United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc)). See also New El Rey Sausage Co. v. INS, 925 F.2d 1153, 1158 (9th Cir. 1991). The preceding regulatory language also begins the current regulatory definition of ‘‘knowing,’’ which is still at 8 CFR 274a.1(l)(1). In the current definition, additional language follows this passage, describing situations that may involve constructive knowledge by the employer that an employee is not authorized to work in the United States. This language was added on August 23, 1991. See 56 FR 41,767. The current definition contains an additional, concluding paragraph, which specifically precludes use of foreign appearance or accent to infer that an employee may be unlawful, and to the documents that may be requested by an employer as part of the verification system that must be used at the time of hiring, as required by INA section 274A(a)(1)(B), 8 U.S.C. 1324a(a)(1)(B). This paragraph will be described in greater detail below. The verification system referenced in this paragraph is described in INA section 274A(b), 8 U.S.C. 1324a(b). C. Final Rule The final rule amends the definition of ‘‘knowing’’ in 8 CFR 274a.1(l)(1), in the portion relating to ‘‘constructive knowledge.’’ First, it adds two more examples to the existing examples of information available to an employer indicating that an employee could be an alien not authorized to work in the United States. It also explicitly states the employer’s obligations under current law after receiving a no-match letter or the other information identified in 8 CFR 274a.1. If the employer fails to take reasonable steps after receiving such information, and if the employee is in fact not authorized to work in the United States, the employer may be found to have had constructive knowledge of that fact. The final rule also states explicitly another implication of the employer’s obligation under current law—whether an employer would be found to have constructive knowledge in particular cases of the kind described in each of the examples (the ones in the current regulation and in the new regulation) depends on the ‘‘totality of relevant circumstances’’ present in the particular case. This standard applies in all cases. The additional examples are: (1) Written notice to an employer from SSA, e.g. an ‘‘Employer Correction Request,’’ that the combination of name and SSN submitted for an employee does not match SSA records; and VerDate Aug<31>2005 14:56 Aug 14, 2007 Jkt 211001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:FRFM15AUR1.SGM 15AUR1 ebenthallonPRODPC61withRULES 29
  41. 41. 45613Federal Register / Vol. 72, No. 157 / Wednesday, August 15, 2007 / Rules and Regulations (2) Written notice from DHS that the immigration status document, or employment authorization document, presented or referenced by the employee in completing Form I–9 was assigned to another person, or that there is no agency record that the document was assigned to anyone. The regulation also describes more specifically the steps that an employer might take after receiving a no-match letter, steps that DHS considers reasonable. By taking these steps in a timely fashion, an employer would avoid the risk that the no-match letter would be used as any part of an allegation that the employer had constructive knowledge that the employee was not authorized to work in the United States. The steps that a reasonable employer may take include the following: (I) A reasonable employer checks its records promptly after receiving a no- match letter to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in the employer’s records, or in its communication to the SSA or DHS. If there is such an error, the employer corrects its records, informs the relevant agencies; verifies that the name and number, as corrected, match agency records—in other words, verifies with the relevant agency that the information in the employer’s files matches the agency’s records; and makes a record of the manner, date, and time of the verification. ICE would consider a reasonable employer to have acted promptly if the employer took such steps within thirty days of receipt of the no-match letter. (II) If such actions do not resolve the discrepancy, a reasonable employer would promptly request that the employee confirm that the employer’s records are correct. If they are not correct, the employer would take the actions needed to correct them, inform the relevant agencies (in accordance with the letter’s instructions, if any), and verify the corrected records with the relevant agency. If the records are correct according to the employee, the reasonable employer would ask the employee to pursue the matter personally with the relevant agency, such as by visiting a local SSA office, bringing original documents or certified copies required by SSA, which might include documents that prove age, identity, citizenship or alien status, and other relevant documents, such as proof of a name change, or by mailing these documents or certified copies to the SSA office, if permitted by SSA. ICE would consider a reasonable employer to have acted promptly if the employer took such steps within thirty days of receipt of the no-match letter. The regulation provides that a discrepancy will be considered resolved only if the employer verifies with SSA or DHS, as the case may be, that the employee’s name matches in SSA’s records the number assigned to that name, or, with respect to DHS letters, verifies the authorization with DHS that DHS records indicate that the immigration status document or employment authorization document was assigned to the employee. In the case of a number from SSA, the valid number may be the number that was the subject of the no- match letter or a different number, for example a new number resulting from the employee’s contacting SSA to resolve the discrepancy. Employers may verify a SSN with SSA by telephoning toll-free 1–800–772–6270, weekdays from 7 a.m. to 7 p.m. EST. See http:// www.ssa.gov/employer/ ssnvadditional.htm. For information on SSA’s online verification procedure, see http://www.ssa.gov/employer/ssnv.htm. Employers should make a record of the manner, date, and time of any such verification, as SSA may not provide any documentation. (III) The regulation also describes a verification procedure that the employer may follow if the discrepancy is not resolved within ninety days of receipt of the no-match letter. This procedure would verify (or fail to verify) the employee’s identity and work authorization. If the described procedure is completed, and the employee is verified, then even if the employee is in fact not authorized to work in the United States, the employer will not be considered to have constructive knowledge of that fact based on receipt of the no-match letter. This final rule, however, will not provide a safe harbor for employers that for some other reason have actual or constructive knowledge that they are employing an alien not authorized to work in the United States. If the discrepancy referred to in the no-match letter is not resolved, and if the employee’s identity and work authorization cannot be verified using a reasonable verification procedure, such as that described in this regulation, then the employer must choose between: (1) Taking action to terminate the employee, or (2) Facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, violated INA section 274A(a)(2), 8 U.S.C. 1324a(a)(2). The procedure to verify the employee’s identity and work authorization described in the rule involves the employer’s and employee’s completing a new Form I–9, Employment Eligibility Verification Form, using the same procedures as if the employee were newly hired, as described in 8 CFR 274a.2, with certain restrictions. The regulation identifies these restrictions: (1) Under the regulation, both Section 1 (‘‘Employee Information and Verification’’) and Section 2 (‘‘Employer Review and Verification’’) would need to be completed within ninety-three days of receipt of the no-match letter. Therefore, if an employer and employee tried to resolve the discrepancy described in the no-match letter for the full ninety days provided for in the regulation, they have an additional three days to complete a new Form I–9. Under current regulations, three days are provided for the completion of the form after a new hire. 8 CFR 274a.2(b)(1)(ii). (2) No document containing the SSN or alien number that is the subject of the no-match letter, and no receipt for an application for a replacement of such a document, may be used to establish employment authorization or identity or both. (3) No document without a photograph may be used to establish identity (or both identity and employment authorization). (This is consistent with the documentary requirements of the United States Citizenship and Immigration Services’ Electronic Employment Verification System (EEVS) (formerly called the ‘‘Basic Pilot Program’’). See http:// uscis.gov/graphics/services/SAVE.htm.) Employers should apply these procedures uniformly to all of their employees having unresolved no-match indicators. If they do not do so, they may violate applicable anti- discrimination laws. The regulation also amends the last paragraph of the current definition of ‘‘knowing.’’ The existing regulations provide, in relevant part, that— Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274[A](b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual. The final rule clarifies that this language applies to employers that receive no-match letters, but that employers who follow the safe harbor procedures set forth in this rule uniformly and without regard to perceived national origin or citizenship status as required by the provisions of VerDate Aug<31>2005 14:56 Aug 14, 2007 Jkt 211001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:FRFM15AUR1.SGM 15AUR1 ebenthallonPRODPC61withRULES 30
  42. 42. 45614 Federal Register / Vol. 72, No. 157 / Wednesday, August 15, 2007 / Rules and Regulations 274B(a)(6) of the INA will not be found to have engaged in unlawful discrimination. This clarification is accomplished by adding the following language after ‘‘individual’’: Except a document about which the employer has received written notice described in paragraph (l)(1)(iii) of this section and with respect to which the employer has received no verification as described in paragraphs (l)(2)(i)(C) or (l)(2)(ii)(B) of this section. Alternative documents that show work authorization are specified in 8 CFR 274a.2(b)(1)(v). Examples are a United States passport (unexpired or expired), a United States birth certificate, or any of several documents issued to lawful permanent resident aliens or to nonimmigrants with work authorization. There may be other procedures a particular employer could follow in response to a no-match letter, procedures that would be considered reasonable by DHS and inconsistent with a finding that the employer had constructive knowledge that the employee was an unauthorized alien. But such a finding would depend on the totality of relevant circumstances. An employer that followed a procedure other than the ‘‘safe-harbor’’ procedures described in the regulation would face the risk that DHS may not agree. It is important that employers understand that the proposed regulation describes the meaning of constructive knowledge and specifies ‘‘safe-harbor’’ procedures that employers could follow to avoid the risk of being found to have constructive knowledge that an employee is not authorized to work in the United States based on receipt of a no-match letter. The regulation would not preclude DHS from finding that an employer had actual knowledge that an employee was an unauthorized alien. An employer with actual knowledge that one of its employees is an unauthorized alien could not avoid liability by following the procedures described in the proposed regulation. The burden of proving actual knowledge would, however, be on the government. Further, DHS may find that the employer had constructive notice from other sources. Finally, it is important that employers understand that the resolution of discrepancies referenced in a no-match letter, or other information that an employee’s SSN presented to an employer matches the records for the employee held by the SSA, does not, in and of itself, demonstrate that the employee is authorized to work in the United States. For example, an alien not authorized to work in the United States may present a fraudulent name and matching fraudulent SSN, and this rule does not address such fraud. II. Comments and Responses A. Authority to Promulgate the Rule Several commenters suggested that DHS does not have the authority to adopt the proposed rule. Different commenters suggested that DHS was intruding on the authority of the SSA, the Department of Justice (DOJ), or the Internal Revenue Service (IRS). These comments seem to indicate a lack of understanding of the nature of the rule, DHS’s role in employer sanctions, and the relationship of authority among the agencies. DOJ, the IRS, and SSA all were involved in the promulgation of the proposed rule. DHS has the authority to investigate and pursue sanctions against employers who knowingly employ or continue to employ unauthorized aliens or who do not properly verify employees’ employment eligibility. Section 274A of the INA, 8 U.S.C. 1324a, requires all United States employers, agricultural associations, agricultural employers, farm labor contractors, or persons or other entities who recruit or refer persons for employment for a fee, to verify the employment eligibility and identity of all employees hired to work in the United States. To comply with the law, an employer, or a recruiter or referrer for a fee, must complete an Employment Eligibility Verification form (Form I–9) for all employees, including United States citizens. 8 CFR 274a.2. Forms I–9 are not routinely filed with any government agency. Employers are responsible for maintaining these records, which ICE may request from them. See 71 FR 34,510 (June 15, 2006). DHS may conduct investigations for violations of section 274A of the INA either on its own initiative or in response to third-party complaints that have a reasonable probability of validity. If DHS determines after investigation that an employer has violated section 274A of the INA by knowingly employing unauthorized aliens, DHS may issue and serve a Warning Notice or may commence administrative proceedings against the employer by issuing and serving a Notice of Intent to Fine (Form I–763). See 8 CFR 274a.9(a)–(d). An employer who wishes to contest the fine may request a hearing before a DOJ administrative law judge. See 8 CFR 274a.9(e); 28 CFR part 68. DHS’s authority to investigate and pursue sanctions against employers who knowingly employ or continue to employ unauthorized aliens necessarily includes the authority to decide not to pursue sanctions against employers who follow the DHS-recommended procedure. In essence, this final rule limits DHS’s discretion to use an employer’s receipt of a particular written notice from SSA or DHS as evidence of constructive knowledge for those employers who follow the DHS procedure. See, e.g., Lopez v. Davis, 531 U.S. 230, 240–41 (2001) (upholding categorical limitation of discretion through rulemaking). The rule does not affect the authority of the SSA to issue no-match letters, the authority of the IRS to impose and collect taxes, or the authority of DOJ to enforce the anti- discrimination provisions of the INA or adjudicate notices of intent to fine employers. DOJ also has an enforcement role in the context of employer sanctions. In addition to adjudicating Notices of Intent to Fine, DOJ—through its Office of Special Counsel for Immigration- Related Unfair Employment Practices— is responsible for enforcing the anti- discrimination provisions of section 274B of the INA, 8 U.S.C. 1324b. See 28 CFR part 44. While charges of unfair immigration-related employment practices may be filed by any DHS officer, they are primarily brought by individuals who believe that they are victims of discriminatory practices. See 28 CFR 44.300. Although individuals generally bring charges on their own behalf, DOJ and DHS may nevertheless file such charges. SSA, by contrast, does not have an immigration enforcement role. Instead, SSA collects employee earnings reports from employers through IRS Wage and Tax Statements (Forms W–2) in order to properly administer Social Security benefits. See 26 CFR 31.6051–2(a). SSA receives over 250 million earnings reports from employers each year. The vast majority of these reports are successfully matched with individual earnings records, which are then used to calculate future Social Security benefits, such as retirement, disability, and survivors’ benefits. Every year, however, the SSA is unable to post some wage reports to individual earnings records because some employees’ reported combinations of names and SSNs do not match SSA records. As mentioned earlier, there are many causes for such a no-match, including clerical error and name change. One cause is the submission of information for an alien who is not authorized to work in the United States and is using a false SSN or an SSN assigned to someone else. For example, in 2002 the SSA was unable to match almost 9 million wage reports, representing $56 billion in earnings. At VerDate Aug<31>2005 14:56 Aug 14, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:FRFM15AUR1.SGM 15AUR1 ebenthallonPRODPC61withRULES 31
  43. 43. 45615Federal Register / Vol. 72, No. 157 / Wednesday, August 15, 2007 / Rules and Regulations the end of tax year 2003, the Earnings Suspense File (ESF) contained approximately 255 million wage reports, representing $519.6 billion in earnings. The ESF is an electronic holding file for wage items reported on Forms W–2 that cannot be matched to the earnings records of individual workers. These wage reports have accumulated since the beginning of the program and date back as far as 1936. One method SSA relies on to resolve these mismatches is issuing employers an ‘‘Employer Correction Request’’—more commonly known as an SSA employer ‘‘no-match letter.’’ One commenter suggested that DHS lacks authority to promulgate regulations related to Form I–9 verification and acceptable documents, claiming that this authority is vested in the Attorney General and the DOJ. This comment misinterprets the division of authority under the Homeland Security Act of 2002 (HSA), Public Law 107–296, 116 Stat. 2135 (Nov. 25, 2002). The HSA abolished the Immigration and Naturalization Service (INS) and transferred its functions to DHS, including those functions relating to employer sanctions. See HSA sections 441, 471, 6 U.S.C. 251, 291; INA section 103(a)(1), 8 U.S.C. 1103(a)(1). The HSA required a division of regulatory authority between DOJ and the newly created DHS, commensurate with the transfer of functions of the former INS from DOJ to DHS. That transfer included the functions of the employment verification system and the regulations for the administration of that system. See 68 FR 10,353 (March 5, 2003). Some commenters mistakenly believed that this rule results in changes to the employment verification system that would require congressional notification. See INA section 274A(d), 8 U.S.C. 1324a(d). This rule merely clarifies current standards related to constructive knowledge. It does not change the verification system, so the notification requirements are inapplicable. Nor does this rule affect the EEV Program, so any limitations that apply to changes in the EEV Program do not apply to this rule. Other commenters suggested that DHS lacks authority to regulate SSA notices. This final rule only addresses how DHS will treat an employer’s knowledge of the name and SSN discrepancy from a written notice from the SSA, such as an ‘‘Employer Correction Request’’ or no- match notice, in investigating the unlawful hiring or continued employment of unauthorized aliens. SSA and DHS, as coordinating agencies within the Executive Branch, are each taking steps to improve the no-match process and the public’s understanding of that no-match process in the immigration context. Finally, one commenter suggested that this rule grants DHS access to tax information covered by section 6103 of the Internal Revenue Code of 1986, 26 U.S.C. 6103. Under section 6103, the IRS, and any other official or employee who acquires the information from the IRS in the course of official duties, may not provide tax returns or tax information to outside agencies or others except under certain circumstances. The same information, however, in the hands of an individual employer is not subject to any restrictions by section 6103. Tax information in the hands of the originator of that information (the employer) is frequently and unquestionably subject to demand in criminal, civil, and regulatory matters by federal, state, and local law enforcement officials. This rule does not provide DHS with access to any tax information governed by section 6103 of the Internal Revenue Code. This rule affects only DHS consideration of SSA no-match letters sent by the SSA to an employer and in the hands of the employer during an investigation of the employer’s records, and that letter in the hands of the recipient does not qualify as tax information covered by section 6103. B. Changes in Legislation Many commenters argued that a regulatory change is unwise in light of the congressional debate over comprehensive immigration reform. As the President has indicated, the Administration supports comprehensive immigration reform that will secure the border, strengthen enforcement of immigration laws in the nation’s interior, and create a temporary worker program, address the millions of undocumented immigrants in the country without providing amnesty, and promote the assimilation of newcomers. DHS believes that worksite enforcement is a critical component of comprehensive immigration reform, and supports mandating an employment eligibility verification system in a manner that is not overly burdensome for American employers. Accordingly, DHS supports legislative provisions that strengthen document verification and related requirements, and that provide a safe harbor for those employers who in good faith comply with the law. Although DHS is working with Congress to enact such legislation, DHS cannot predict when Congress will pass such legislation. The further development of regulations under existing law is quite common and regulatory action continues when Congress is considering legislative proposals. In the interim, however, this rule will provide employers with the information they need to respond to receipt of the no-match letters. Others argue that the regulation should wait because it may prove to be inconsistent with, or superfluous to, future legislation, and that this might cause confusion on the part of employers. DHS believes that there is an immediate benefit to providing this rule change. If future legislation requires an adjustment, the regulation can be amended. C. Constructive Knowledge A number of commenters suggested that the proposed rule impermissibly expands the concept of constructive knowledge. DHS disagrees. The current regulations provide that ‘‘The term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.’’ 8 CFR 274a.1(l)(1). This rule will revise the structure of the definition to separate references to actual knowledge from constructive knowledge, but it will retain the same definition of constructive knowledge: ‘‘[c]onstructive knowledge is knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.’’ This is consistent with the common definition that ‘‘constructive knowledge’’ is ‘‘[k]nowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.’’ Black’s Law Dictionary (8th ed. 2004). The use of the term and its meaning is common, although the application to specific facts is subject to interpretation. See, e.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (company’s liability for product that facilitates copyright infringement); Harris Trust and Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000) (transferee’s liability under ERISA for prohibited transaction); Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (employer’s vicarious liability for sexual harassment in workplace). DHS is including an illustrative definition in the regulations to more clearly distinguish ‘‘constructive notice’’ from actual notice without changing the meaning of either term. VerDate Aug<31>2005 14:56 Aug 14, 2007 Jkt 211001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:FRFM15AUR1.SGM 15AUR1 ebenthallonPRODPC61withRULES 32
  44. 44. 45616 Federal Register / Vol. 72, No. 157 / Wednesday, August 15, 2007 / Rules and Regulations Courts have long held that constructive knowledge is applicable in situations involving employment of unauthorized aliens. In Mester Manufacturing v. INS, 879 F.2d 561, 566 (9th Cir. 1989), the INS notified an employer that immigration status documents presented by certain employees for completion of Forms I–9 were fake, yet the employer took no action. Analogizing to the criminal law, the Ninth Circuit held that the INS demonstrated Mester had knowledge because Mester ‘‘failed to take appropriate corrective action’’ after ‘‘receiv[ing] specific information that several of his employees were likely to be unauthorized.’’ Id. at 566–67. The Ninth Circuit invoked constructive knowledge again in New El Rey Sausage Co. v. INS, 925 F.2d 1153, 1158 (9th Cir. 1991), in which it pointed out that ‘‘employers, far from being allowed to employ anyone except those whom the government had shown to be unauthorized, have an affirmative duty to determine that their employees are authorized.’’ A number of commenters have argued that the present rule impermissibly expands the reach of constructive knowledge, citing Collins Food Int’l v. INS, 948 F.2d 549 (9th Cir. 1991). In Collins Food, the Ninth Circuit held that a finding of constructive knowledge could not be based on (1) The employer’s extending an offer of employment prior to conducting a Form I–9 verification, and (2) the employer’s accepting a Social Security card as evidence of employment authorization when the back of the card did not match the Social Security card pictured in the INS Handbook for Employers. Id. at 552, 554. In doing so, the court applied the doctrines set out in Mester and New El Rey Sausage but cautioned against an expansive application of constructive knowledge: [The Immigration Reform and Control Act of 1986], as we have pointed out, is delicately balanced to serve the goal of preventing unauthorized alien employment while avoiding discrimination against citizens and authorized aliens. The doctrine of constructive knowledge has great potential to upset that balance, and it should not be expansively applied. 948 F.2d 554–55. Some commenters have argued that Collins Food limits findings of constructive knowledge to situations in which employers have been explicitly warned by DHS that an employee may be an unauthorized alien. Thus, they suggest, DHS is impermissibly expanding constructive knowledge by including receipt of written notice from SSA as an example of a situation that may lead to a finding of constructive knowledge. This is an incorrect reading of Collins Food. Indeed, Collins Food distinguished Mester and New El Rey Sausage precisely because ‘‘Collins Food did not have the kind of positive information that the INS had provided in Mester and New El Rey Sausage.’’ 948 F.2d at 555. Nothing in Collins Food— or any other case cited by the commenters—suggests that such ‘‘positive information’’ indicating certain employees may be unauthorized aliens must come from DHS and not from SSA. Additionally, these comments do not distinguish between an affirmative obligation to resolve the issues raised by the no-match letters and the ‘‘safe harbor’’ from use of the no-match letter as part of a determination of constructive knowledge. This final rule does not require an employer to take any particular action; the rule simply provides a clear method for employers to exercise reasonable care in addressing ‘‘no-match’’ letters. Nor does this rule require that employers avail themselves of the safe- harbor procedure. As many commenters point out, receipt of written notice from DHS resulting from a Form I–9 audit creates a duty to investigate, whereas receipt of an SSA no-match letter may create such a duty depending on the totality of the circumstances. DHS acknowledges that an SSA no-match letter by itself does not impart knowledge that the identified employees are unauthorized aliens. DHS is aware that SSA no-matches may occur due to a name change or typographical error. In some situations a listed SSN is facially suspect, such as when the first three numbers of an employee’s claimed SSN are ‘‘000,’’ or are in ‘‘800’’ or ‘‘900’’ series, which are not used. DHS believes that the initial submission of Form I–9 with facially incorrect information is problematic, and that this type of information cannot be created by an innocent transcription or typographic error. A letter from DHS or SSA stating that such a number has been checked and does not match agency records reinforces the suspect nature of the original information. In other situations, an SSA no-match letter sent to the employer may be the first indication of a suspect number, and when combined with other evidence known to the employer, ‘‘would lead a person, through the exercise of reasonable care, to know’’ that the employee is not authorized to work. 8 CFR 274a.1(l)(1). A number of commenters have suggested that SSA no-match letters issued in the past claim to make no statement about an individual’s immigration status, and employers are confused about their obligations under the civil rights laws. To the extent employers were confused, this rule should provide clear guidance. One commenter requested that DHS clarify whether employers who follow the procedures herein will be protected from all claims of constructive knowledge, or just claims of constructive knowledge based on the letters for which the employers followed the safe-harbor procedure. DHS has amended the language in the final rule at paragraphs (l)(2)(i) and (l)(2)(ii) to clarify that (1) An employer who follows the safe-harbor procedure will be considered to have taken reasonable steps in response to the notice, and (2) the employer’s receipt of the written notice will therefore not be used as evidence of constructive knowledge. If, in the totality of the circumstances, other independent evidence exists to prove that an employer has constructive knowledge, the employer may still face liability. This could be unusual, however, in the situation where an employer carefully follows the safe- harbor procedures provided in this regulation and has no information suggesting that the employee is using another person’s identity. Also, as noted in the proposed rule, this safe-harbor procedure does not protect an employer who has actual, as opposed to constructive, knowledge that an employee is an unauthorized alien. D. Fourteen-Day and Sixty-Day Time Frames Several commenters suggested that the fourteen calendar-day time frame in the proposed rule was insufficient for employers to review their records to determine if a typographical or other error caused the no-match, correct their records and verify the corrected information to attempt to resolve a discrepancy in an SSA letter or a question raised in a DHS letter. The commenters proposed a range of alternatives, from fifteen business days to one hundred and twenty days. After careful consideration, DHS is extending the initial fourteen-day time frame to thirty calendar days. 8 CFR 101(h). DHS believes that this provides sufficient time for employers to take certain reasonable steps to resolve the problem. Many commenters also suggested that the sixty-day time frame in the proposed rule for an employee to resolve the no- match with DHS and SSA was insufficient. Most argued for an extension by claiming that SSA would be unable to resolve discrepancies VerDate Aug<31>2005 14:56 Aug 14, 2007 Jkt 211001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:FRFM15AUR1.SGM 15AUR1 ebenthallonPRODPC61withRULES 33
  45. 45. 45617Federal Register / Vol. 72, No. 157 / Wednesday, August 15, 2007 / Rules and Regulations between names and SSNs and that DHS would be unable to resolve questions about immigration status within this time frame. DHS has consulted with SSA throughout this rulemaking and on this particular issue. SSA has informed DHS that, if employer and employee act in a timely manner, a 90-day timeframe will be sufficient for all but the most difficult cases. DHS has extended the time to ninety calendar days. This rule does not create a new requirement that an employer resolve a discrepancy within ninety days. Instead, the rule creates a safe harbor from use of the no-match letter as part of an allegation of constructive knowledge if the employer takes certain steps to resolve the discrepancy. In situations not covered by this rule, constructive knowledge will continue to be based on a number of factors, including whether the employer made a good-faith but ultimately unsuccessful attempt to comply with the safe-harbor procedure. Some commenters requested that the time frame be tolled in certain circumstances—for example, fourteen days from the date the ‘‘appropriate human resource staff’’ at the employer reads the letter. DHS declines to adopt such a proposal because it would add too much inconsistency and unpredictability. In addition, since the time period has been extended to thirty days, the concern about misdirected mail is somewhat mitigated. Moreover, the employer can control the receipt of the no-match letter in the same manner as it controls all related correspondence through the address that it submits on its filings. Others have asked that DHS create special rules for special circumstances, such as seasonal workers, teachers on sabbatical, and employees who are out of the office for an extended period due to excused absence or disability. DHS recognizes that there may be situations where employers may not be able to avail themselves of the safe-harbor procedure as described herein. This rule provides an option, not a requirement. DHS is attempting to provide a safe- harbor procedure with as much general application as possible for employers. In these types of special circumstances, an employer should make a good faith effort to resolve the situations as rapidly as practicable, and keep a file documenting such efforts. Some have complained that the proposed rule did not clarify what steps employers must complete within the fourteen-day time frame. To provide more clarity, DHS has amended the text of this final rule to provide that employers must check and resolve any discrepancies within their own records within thirty calendar days of receiving notice from SSA, or contact the local DHS office within thirty days of receiving notice from DHS. If an employer receives, for example, an SSA ‘‘Employer Correction Request’’ notice and determines that the discrepancy referenced is not due to the employer’s records, the employer must promptly ask employees to check their own records, confirm the information in the employer’s records, and follow up with SSA as appropriate. Although this action need not occur within thirty days, employers must nevertheless act within a reasonable time frame in order to satisfy this promptness requirement. It is also important for employers to notify employees promptly if further action is required so they have a reasonable amount of time to contact the appropriate agency, and so that the agency can correct its records within the ninety-day time frame. The steps and time frames are illustrated, as in the proposed and final rules, in the following table: COMPARISON OF TIMING OF ACTIONS UNDER PROPOSED AND FINAL RULES Action Proposed rule Final rule Employer receives letter from SSA or DHS indicating mismatch of employee, name and Social Se- curity number. Day 0 ..................... Day 0. Employer checks own records, makes any necessary corrections of errors, and verifies corrections with SSA or DHS. 0–14 days .............. 0 

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