UPDATE! On August 31, 2007, a federal judge in California halted the implementation of the government's new "no-match" regulation, by invoking a nationwide temporary restraining order. (See AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. C07 4472 CRB). According to the injunction, the government is prevented from "giving any effect to or otherwise taking any action to implement the Final Rule adopted by the Department of Homeland Security entitled, 'Safe-Harbor Procedures for Employers Who Receive a No-Match Letter'". For the time being, this injunction precludes the government from mailing no-match packets that include DHS guidance to employers.
On August 15, 2007, the Department of Homeland Security ("DHS") published a final rule describing new legal obligations of an employer with regard to the hiring and continued employment of illegal aliens.
The regulation states, "It is unlawful for a person or other entity, after hiring an alien for employment&.to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment." For purposes of the regulation, the term "knowing" has always included actual and constructive knowledge. However, the final rule expands the definition of constructive knowledge to encompass three more examples of information available to an employer indicating that an employee might not be authorized to work in the United States. The three new scenarios which can indicate constructive knowledge are: 1) the employer's receipt of a "no-match" letter from the Social Security Administration 2) the employer's receipt of a letter regarding employment verification forms from the Department of Homeland Security and 3) an employee's request for the employer to sponsor him or her for labor certification or a visa.
The regulation delineates specific actions that must be taken by the employer, and the timeframe within which to comply, in the event of a no-match letter or a notice from DHS. The employer must check to see if the error is a result of clerical error and resolve the error, or have the employee resolve the matter within 30 days of receipt of a no-match letter or DHS letter (unless another timeframe is specified). If the discrepancy cannot be resolved within 90 days, the employer must attempt to reverify the employee's eligibility by completing a new I-9 form - but this time with restrictions on the documents that may be accepted to verify the alien's eligibility. Complying with all steps specified in the regulation will, in most cases, provide employers a "safe harbor", if there are future allegations that the employer knowingly hired or continued to employ an illegal alien. Notably, employers will NOT be protected by the safe harbor provisions if they possess actual knowledge that they are employing an alien not authorized to work in the United States. Finally, employers should fulfill the safe harbor protocol to the best of their ability before terminating an employee. Uniform application of the safe harbor rules will protect employers from disparate treatment claims of employment discrimination.
This rule was to become effective September 14, 2007, but has been temporarily suspended in light of the temporary injunction. On October 1, 2007, the injunction will be reexamined by another Federal District Judge. If the DHS no-match regulation ultimately goes into effect, please contact our office at (512) 476-1959, so we can evaluate the specific facts of your case and provide personalized advice regarding compliance with this regulation.
