The Safe-Harbor Rule for No-Match Letters: Part 3 of 3
Posted by Terri Cheek On March 31, 2008 In: Hiring , Personnel File
This is the third in a series of posts about the new Safe-Harbor rule issued by the Department of Homeland Security. For the 1st and 2nd posts in the series, go here and here.
What’s An I-9 Form? Is This Rule In Effect Now? What Is The Current Status Of The Regulations? DHS has not changed any of the provisions of the original rule. After the notice of the “supplemental proposed rule” is published in the Federal Register, there will be a 60-day period for the public to submit comments, and then DHS will review the comments, consider revising the rule, and then issue a final rule. It seems likely that the final rule will be the same as the rule published in August 2007. Bottom Line
The I-9 form is used to enforce the part of IRCA that prohibits employment of non-work-authorized aliens. All U.S. citizens, all lawful permanent resident aliens, all refugees and all asylees are allowed to work in the U.S. by virtue of their status. There are also some other categories of immigrants who are legally permitted to work here. All employers are required to prepare an I-9 form for each new employee to show that the employer has examined documents that demonstrate that the employee is legally authorized to work in the U.S. Employers are supposed to accept the documents only if they appear to be genuine (not counterfeit) and to relate to the person who provided them. Most U.S. citizens meet the document requirement by showing a driver’s license and a social security number card, but on the back of the I-9 form there are lists of other documents that can be used to prove identification and authorization to work.
Back To The Safe Harbor Rule
Under the new rule, if the employee has not provided corrected SSN information by the 90th day and the employee had relied on an SSN card as proof of work authorization, the employee must provide some other evidence of work authorization. The employee may not use documents that include the disputed SSN. The employee may not rely on an application for replacement work authorization documents, either. The employee also may not use non-photo identification.
What If The Employee Can’t Provide Acceptable Documents?
The employer has to either fire the employee or put itself at risk of prosecution for knowingly employing illegal aliens.
The rule was supposed to go into effect in September, but the AFL-CIO, the ACLU, the National Immigration Law Center and others filed a lawsuit [(AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. 07-CV-4472 CRB)] in the U.S. District Court of the Northern District of California to prevent the government from enforcing the rule. On August 31, 2007, the court issued a temporary restraining order preventing DHS and the SSA from implementing the rule. The SSA had planned to send about 140,000 no-match letters containing a DHS insert that would affect about 8 million workers to employers. The order stopped the SSA from sending those letters, so currently there are no pending no-match letters for employers to deal with.
Implementation is on hold pending new rulemaking. DHS has just published a “supplemental proposed rule” in which it addresses problems the court identified. One problem was that DHS had stated that employers that complied with the rule would not get into trouble for citizenship status discrimination, even though OSC, not DHS, is the agency charged with enforcing IRCA’s citizenship status discrimination provisions. Another issue was DHS’s failure to explain and justify the change from its prior position on what social security number mismatches imply. Finally, DHS had failed to make a “regulatory flexibility analysis.”
Will The Safe Harbor Rule Be Mandatory?
DHS says it will be voluntary, but the court disagreed, noting that employers that receive a no-match letter must follow the rules to avoid being accused of knowingly employing illegal immigrants. At least employers who follow the rule will not have to worry about being accused of discrimination -- the OSC has just issued a statement assuring employers that if they follow the rule in a careful, uniform manner, it will not find reasonable cause to believe that they have terminated employees because of their citizenship status. You can read the entire OSC statement here.
This rule may provide some temporary relief to employers caught between a rock and a hard place trying to comply with competing laws, but I predict that it will ultimately result in a decrease in counterfeit SSN cards with made-up SSNs and an increase counterfeit SSN cards using stolen identities to avoid getting caught up in the no-match net. The government currently has no useful mechanisms in place to deal with identity theft that I know of but will end up having to create them. I see universal fingerprints or retinal scans on the horizon.
