DHS finalizes employer safe harbor provisions for no-match rule

The Department of Homeland Security (DHS) issued a supplemental rule recently on its ‘no-match” rule which determines when an employer is liable for knowingly employing an illegal alien.  The rule provides a safe harbor against liability for employers who take certain steps upon receiving a ‘no-match” letter from the Social Security Administration (SSA) or the Department of Homeland Security (DHS).  The rule was issued to address a federal district court order that stopped the agency from enforcing its requirements over concerns relating to employer liability.  The DHS had begun sending out ‘no-match” letters to employers last year that threatened civil and criminal penalties if they failed to resolve mismatched social security numbers on I-9 Employee Eligibility Verification Forms.  The DHS letters stated that failure to respond would be construed as a ‘knowing” violation of Section 274 of the Immigration and Nationality Act.

The court ruled that the DHS had improperly changed policy in the final rule without notice or public comment when it said that constructive knowledge may be inferred if an employer fails to take reasonable steps after receiving nothing more than a no-match letter in the final rule’s text.  The DHS supplemental rule addresses the court’s concerns, but does not change any provisions in the no-match rule.

The SSA informs thousands of employers every year via ‘no-match” letters that certain employees’ names and corresponding Social Security numbers provided on the employers’ Form W-2 wage reports do not match SSA’s records.  As many as four percent of approximately 250 million wage reports the SSA receives each year belong to employees whose names and corresponding Social Security numbers do not match SSA records.
The No-Match Rule details steps employers may take when they receive a ‘no match” letter and guarantees that US Immigration and Customs Enforcement will consider employers who follow those steps to have acted reasonably.  If an employer follows the safe harbor procedures in good faith, the ICE will not use the employer’s receipt of a no-match letter as evidence to find that the employer violated the employment provisions of the Immigration and Nationality Act by knowingly employing unauthorized workers.

The rule became effective October 28, 2008. For more information, visit the Department of Homeland Security Web site, www.dhs.gov.

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