New Immigration Rules Increase Punishment for Employment of Illegal Immigrants

Kegler Brown Labor + Employee Relations Newsletter

Just when you thought the issue of immigration reform had been put to bed, the Department of Homeland Security revived it. As you know, employers can be held liable, and in some cases criminally liable, when they knowingly employ individuals who are not legally authorized to work in the country. This knowledge can be actual, direct or constructive knowledge inferred from the circumstances.

The new rule, which becomes effective on September 13, 2007, states that an employer is found to have constructive knowledge that an individual may not be eligible for employment in the country as soon as the employer receives a "no match" letter. The Social Security Administration sends no-match letters when an employee's name and social security number do not match the records contained in the government databases.

The rule also provides employers a safe harbor, protecting them from liability, if they follow the procedure set forth in the rule. In order to be protected from liability, upon receiving a no-match letter, an employer must check its records within 30 days to determine whether the discrepancy results from a clerical error. If the discrepancy is not the result of a clerical error, the employer must confirm with the employee that the information in the employer's records is correct. If the employee states that the employer's records are incorrect, the employer must correct them and inform the Social Security Administration. If the employee confirms that the employer’s records are correct, the employer must request that the employee resolve the discrepancy with the Social Security Administration.

The employer must also inform the employee that the discrepancy must be resolved within 90 days of the day the employer received the no-match letter. If, after 90 days, the employer is unable to verify that the employee's name and social security account number matches the Social Security Administration's records, the employer must, within three days, verify the employee's employment authorization and identity by completing a new I-9 form. The employer may not accept any documentation mentioned in the no-match letter. In most instances, the employee will not be able to provide this documentation and the employee must be terminated; otherwise, the employer may face liability for employing an illegal alien.

The Social Security Administration will begin sending this year's no-match letters to approximately 140,000 employers this fall. These letters will correspond to approximately 8 million workers. Now is a good time to make sure any employees who are involved in the hiring process are aware of the new rule and its requirements.