The “Safe-Harbor” Rule for No-Match Letters: Part 2 of 3

The Department of Homeland Security (“DHS”), has issued new procedures for employers who receive “no-match” letters. In Part 1 of this post, I talked about the state of the law before the new “Safe-Harbor” rule was issued. In this post, I’ll discuss the potential impact of the Safe-Harbor rule and why it is so important for employers.

Why Do Employers Need A Safe Harbor?
Over the past 2 or 3 years, DHS has developed evidence that most cases of social security number mismatches involve undocumented workers. However, in the text of its mismatch letters and on its website, the SSA cautions employers not to take any adverse action against employees based on a mismatch issue because there could be many innocent reasons for a mismatch. Another branch of the government, the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), also cautioned employers not to take action against employees based on SSN mismatch issues because OSC might interpret such action as discrimination in violation of the anti-discrimination provisions of Immigration Reform and Control Act of 1986 (“IRCA”).

Nevertheless, in the past 2 years, Immigration and Customs Enforcement (“ICE”), has been raiding employers that received no-match letters. ICE has even arrested and criminally prosecuted individual managers, accusing them of recruiting, harboring and knowingly employing illegal aliens. For example, in April 2007, DHS raided 40 plants in 26 states of a company called IFCO, apprehending 1,187 undocumented workers. DHS also arrested a plant manager and a regional manager on charges of conspiring to transport, harbor, and encourage undocumented workers to reside in the United States. The penalty for conviction is up to 10 years in prison. DHS intends to increase the fines for knowingly employing illegal aliens by 25%. Right now the fines are $2500 for a first offense and up to $10,000 for repeat offenses.

The number of criminal prosecutions for knowing employment of undocumented workers is rising and that will continue. There were 716 criminal arrests in fiscal year 2006, and the number increased in fiscal year 2007. In 1999 there were only 24 arrests.

What Does The New Rule Say To Do?
The first step the employer takes is to check its records for typos and similar errors. If any errors are discovered, the employer contacts the SSA to make sure that the correct name and social security number match the SSA records. Employers have 30 days from receipt of the no-match letter to take this step.

The next step is to ask the employees on the list about the discrepancies. If the employee says the information in the employer’s records is incorrect, the employer corrects its records and contacts the SSA to make sure the corrected information matches its records.

If the employee says the information in the employer’s records is correct, the employer has 30 days to ask the employee to contact the SSA about the discrepancy. The employee has 90 days from the date of receipt of the no-match letter to provide new information to resolve the discrepancy. If the employee does not provide new information, the employee has three days from the 90th day to provide new documentation that will enable the employer to prepare a new I-9 form as if the employee were a new hire.