On August 15, 2007, the Department of Homeland Security (“DHS”) and Immigration and Customs Enforcement (“ICE”) published the final rule for “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” from the Social Security Administration (“SSA”) or DHS. This rule becomes effective on September 14, 2007. A more detailed letter on this will follow, but we are providing you with this E-Alert given the major change and short implementation time-line. The regulation in essence provides that if, after engaging in the steps below, you cannot confirm the employee is authorized to work, you must choose between: (1) taking action to terminate the employee, or (2) face the risk that DHS may find that you had constructive knowledge that the employee was an unauthorized alien.

A no-match letter is a letter sent by the SSA notifying an employer that he or she has submitted reports (Wage and Tax Statements sometimes called W-2s) that contain names and Social Security numbers that do not match SSA records. The Bureau of Immigration and Customs Enforcement (“ICE”) sends a similar letter after it has inspected an employer's Employment Eligibility Verification forms (Forms I-9) 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.

The regulation sets forth the “safe-harbor” procedures an employer may follow in order to avoid the risk that DHS may find that an employer had constructive knowledge that an employee was not authorized to work. The DHS/ICE considers the following to be reasonable steps of the employer after receiving a no-match letter:

1) No later than 30 days after receiving a no-match letter, the employer must check its records to ensure that the mismatch was not the result of the employer's clerical error.

2) If the employer is certain the mismatch is not due to the employer's error, the employer must ask the employee to confirm the accuracy of his/her information contained within the employer's records.

3) If the employee confirms the accuracy of the employer's records, the employer should promptly notify the employee that he/she must resolve the issue with SSA. The employer should also inform the employee that he/she has 90 days from the date the employer received the no-match letter to resolve the matter with SSA.

4) If none of the foregoing measures resolves the mismatch within 90 days of receipt of the no-match letter, the employer should complete, within three (3) days, a new I-9 Form as if the employee in question were newly hired. However, in this process, no document may be used to verify the employee's authorization for work that uses the questionable Social Security number or alien registration number. The employee must present a document containing a photograph in order to establish identity or both identity and employment authorization.

If you have additional questions, please contact H. Le Phan, Felhaber Attorney, at hphan@felhaber.com, or at 612-373-8407.