Safe Harbor Regulation: What to do if it takes effect (Updated)

SAFE HARBOR REGULATION: WHAT TO DO IF IT TAKES EFFECT

STATUS: BLOCKED     LITIGATION STAYED UNITL MARCH 28, 2008   DHS CLARIFICATION: MARCH 21, 2008

            Under the new regulation, a no match letter (either that an SSN or an immigration document does not match the employee's name) will be basis to find that an employer has constructive knowledge that an employee is undocumented UNLESS the employer takes the following steps:

1.     Check for clerical or typographical errors in recording the SSN. Employers must inform the SSA of any error found within 30 days of receipt of the no match letter.  The process must be documented and stored with the employee's I-9.  Remember to stamp no match letters with a "received" stamp on the day the letter comes in. You do not have to wait to complete your internal check to notify the employee of the mismatch!  Remember, employees may need time to pursue a correction.  If an error is found and corrected, the employer must verify the corrected information with the SSA.  The Social Security Verification System can be reached at www.ssa.gov/employer/ssnv.htm or by telephone at (800) 772-6270 (7:00 am to 7:00 pm EST). Verification should be documented by notes and by printing the verification screen from the computer.

If no error is found, the employer must require the employee to confirm his or her name and SSN.  Be sure to notify the employee within five (5) days of completing the records check.   If the records are correct, the employer must double check for a clerical error, and must direct the employee to resolve the issue with the SSA within 90 days of receipt of the no-match letter.  If a correction is made, the employer must verify the corrected information with the SSA.  The entire process must be documented, including written instructions to the employee, and documentation of any telephone calls with government agencies.

2.     Reverify the I-9. If the no match remains unresolved after 90 days, then reverify the I-9 within 3 days using the following procedure:

•·         The employee must complete section 1 (employee information) and the employer must complete section 2 within 93 days of receipt of the no match letter. 

•·         The employer may not accept any document with the disputed SSN (if the mismatch letter came from SSA) or the disputed Alien Number (if the mismatch letter came from DHS) or a receipt for an application for a replacement for such a document.

•·         The employee must use a document with a photograph to establish identity or identity and employment authorization. 

•·         The new form I-9 must be kept with the former I-9.

•·         The regulation is not clear whether the employer must verify the legitimacy of documents used for the new I-9, but DHS has recommended verification of new documents, and following such a procedure is the most conservative approach.  If a U.S. Birth Certificate is produced to show authorization to work in the United States, employers should insist on a certified copy of the certificate.  Such policies must be applied consistently.

3.     Terminate Employment: If the employer cannot resolve the mismatch, and cannot verify the correction, or if the employee cannot complete a new I-9, then the employer must terminate the employee or risk immigration violations based on constructive knowledge.

Employers still must be cautious about discrimination charges, and I-9 reverification should protect employers from accusations that it presumes that employees with unresolved mismatches are undocumented.  Remember, not all mismatches result from immigration problems.  For practical purposes, many employees will abandon their jobs when faced with the prospect of I-9 reverification, and their departure will be a voluntary quit, rather than being fired by the employer, a characterization that will further help protect against discrimination allegations. 

DHS and the U.S. Attorney's office have been eager for years to use mismatch letters against employers, and will undoubtedly be aggressive in pursuing such cases, particularly in light of political points that can be scored in the present environment by going after employers.  If the employer has information apart from the mismatch that gives rise to actual or constructive knowledge, it cannot continue to employ the individual. Accordingly, employers must terminate employees who admit that they are undocumented, and should not allow employees to work under more than one name.

4.     Seasonal or Intermittent Employees:  Often no match letters concerning employees arrive the employee has been laid off or terminated and the end of a project or season.  Regardless of whether the employee is still employed, the employer should check its records to make sure there was no clerical or transcription error within 30 days of receipt of the no match letter.  The employer does not need the employee to promptly comply with this component of the safe harbor procedure.  

•·         Under one approach, once the employee is laid off and becomes an ex-employee, then the employer has no obligation unless and until the employee returns, and the employer receives a new no match letter.  Under this approach, the employer should send a letter to the SSA after receiving the initial no match letter in which it notifies the SSA that it has confirmed there is no error in its records.  The letter should explain that the employer is unable to follow up with the employee because the employee is no longer employed.  If the employee returns to work on another job or during a peak labor need, the employer should follow normal hiring and verification procedures.  If a new no match letter is received, the employer should follow the safe harbor procedures to the extent possible.

•·         Under a more conservative approach, the employer should start the clock on the 90 day deadline when the employee returns from the layoff.  If the employee returns for a subsequent job or when labor needs peak, the employer should give the employee 90 days from the date of hire to correct the mismatch.  If the problem is not resolved within that period, then follow the I-9 reverification procedure.