Following the defeat of comprehensive immigration reform legislation in the U.S. Senate, the Department of Homeland Security has indicated that it will likely finalize rules regarding new verification procedures for employers that receive no-match letters from the Social Security Administration (SSA).  The rules, proposed last June, would require employers to take affirmative steps to verify workers' identities if they receive notice from SSA regarding a mismatched Social Security Number, and for the first time would require employers to fire employees or risk enforcement action.  These rules were initial summarized last year by the Government Affairs team, and BSCAI filed comments with the Department of Homeland Security opposing the rules in their draft form.  From our discussions with other business groups, and contacts in Washington, we anticipate that the final rules will offer a longer period for verifying identity (perhaps up to 90 days), but will nevertheless require BSCAI members to request new documentation from their employees in many instances.

A copy of the rule can be secured from the BSCAI Web site, and a summary follows below.  While this summary reflects the draft rules containing a 63-day deadline for resolving discrepancies, we nevertheless expect that time frame to be lengthened in the final rule.

Summary of Proposed DHS Rule

The proposed DHS rule would amend the definition of “knowing” in 8 CFR 274a.1(l)(1), in the portion relating to “constructive knowledge.” Under the proposed rule, when an employer receives a no match letter, they can take advantage of a safe harbor by taking the following steps:

1) Review internal records within 14 days to determine whether the discrepancy is clerical -- i.e., the records were improperly transcribed, misspelled, or other similar error occurred, and advise either SSA or DHS of the mistake.

2) In the event that there is no clerical discrepancy, an employer should request that the employee confirm that the employer's records are correct, and if not, contact the appropriate agency to resolve any inaccuracies or provide corrected documents or records to the relevant agency.  A discrepancy will be considered "resolved" under the proposed rule once the employer verifies with the SSA or DHS that the corrected records have been verified.  Under the proposed regulation, an employer should complete this process within 14 days.

3) Completing and submitting a new I-9 within 63 days of receiving the no match letter, so long as:

a) no document containing a social security number or alien number contained in the no match letter is used in completing the I-9;

b) no receipt for an application for a replacement document containing a social security or alien number contained in the no match letter is used in completing the I-9;

c) a document with a photo must be used to establish identity; and

d) the new I-9 must be retained in the same manner as earlier I-9's.

In the event that the discrepancy cannot be resolved within 60 days, and a new I-9 cannot be completed within 63 days, an employer must elect to either terminate the employee or face the risk that DHS will assert that the employer had constructive knowledge that the individual was an unauthorized alien.

The proposed regulation makes clear that this safe harbor does not apply in circumstances where the employer has actual knowledge that the employee is unauthorized or is complicit in falsifying documents.