Based upon a recent decision by a federal judge in California, the Department of Homeland Security (DHS) cannot take steps to enforce its new “safe harbor” regulation regarding Social Security Number (SSN) mismatches until legal challenges to the regulation can be resolved.
Based upon a recent decision by a federal judge in California, the Department of Homeland Security (DHS) cannot take steps to enforce its new “safe harbor” regulation regarding Social Security Number (SSN) mismatches until legal challenges to the regulation can be resolved. See American Federation of Labor v. Chertoff (N.D. Cal. October 10, 2007). Thus, while the new regulation’s 90-day time period for resolving SSN mismatches currently is not in effect, employers are still required, as they have always been, to respond to no-match letters in a reasonable manner. Employers will not likely receive any further clarification from DHS regarding specific steps required to resolve no-match letters until a court resolves the legal challenges to the new regulation.
As noted in our prior Legal Alert, under the new regulation, now temporarily on hold, an employer could be considered to have constructive knowledge that an employee is not authorized to work in the United States based upon receipt of a notice from the Social Security Administration that the SSN reported for the employee does not match the agency’s records. The new regulation also provides a procedure that employers may follow to resolve the no-match letter, with the employee’s cooperation, within a 90-day time frame. Employers who follow this “safe harbor” procedure will not be considered to have constructive knowledge of an employee’s unauthorized work status based solely on the receipt of a no-match letter.
The regulation was challenged by a group of unions and business organizations who claim, among other things, that DHS exceeded its authority in issuing the regulation and failed to follow the proper administrative procedures.
Employers’ Bottom Line:
Employers should be aware that the issue of employment of illegal immigrants is a priority for DHS. Accordingly, employers should take steps to ensure that they have appropriate documentation for current workers and that they obtain such documentation for all newly hired employees.
Because of the injunction, we do not have any clarification at this time regarding specific steps employers should take in response to a no-match letter. At the very least, however, employers should notify affected employees of the mismatch and follow up with these employees in a timely manner to ensure that the mismatch has been resolved. Employers should also document the steps they take to ensure the mismatch has been resolved. If the mismatch is not resolved, the employee’s work authorization may be in question.
Although an employer may not take an adverse employment action against an employee based upon receipt of a no-match letter alone, receipt of this letter along with a failure to resolve the issue may justify termination. Whether an employer will be deemed to have “constructive knowledge” of an employee’s lack of work eligibility (and therefore liability) is determined based on the totality of circumstances. An employer’s failure to follow up with an employee regarding a SSN discrepancy, or failure to inquire further when an employee appears repeatedly on no-match letters, may all weigh in favor of a finding of “constructive knowledge.”
We will continue to keep you updated on the status of this regulation. If you have any questions regarding no-match letters or any employment related immigration issue, please contact Geetha Nadiminti, 404-888-3940, gnadiminti@fordharrison.com, or any member of Ford & Harrison’s Business Immigration Practice Group.