New Safe-Harbor Regulations from the United States Immigration and Customs Enforcement division (ICE) of the Department of Homeland Security (DHS) were issued on Aug. 15, 2007.  These new rules and regulations provide a safe-harbor from criminal and civil sanctions to employers who receive no-match letters from the Social Security Administration (SSA) and follow ICE provisions. 

Although the Safe-Harbor Regulations became effective on Sept. 14, 2007, a California district court issued a preliminary injunction barring the government from sending the no-match letters to 140,000 employers because the notification letters threaten employers with criminal and civil liability for failing to comply with the Safe-Harbor Regulations and to resolve employees’ mismatched Social Security numbers.  The basis for the Court’s injunction was that the threatening notification letter could result in mass firings of legal workers based on their nationality as employers sought to fit within the safe harbor.

On Dec. 14, 2007, the California District Court Judge stayed his earlier order and gave the DHS until March 2008 to develop or amend the Safe-Harbor Regulations regarding employer notification.  Regardless of the status of the preliminary injunction against the government, employers should strive to comply with Safe-Harbor Regulations to be in the best possible position when the new or amended regulations are announced in March 2008.  The following is a summary of the Safe-Harbor Regulations, as published in August 2007. 

The Safe-Harbor Regulations do not protect the employer who has actual knowledge that his workforce is unauthorized.  However, the Safe-Harbor Regulations provide protection to employers from sanctions based on constructive knowledge in two situations: (1) where the employer receives a letter from the SSA that the employee’s name and social security number do not match SSA’s records or (2) where the employer receives a letter from the DHS that the immigration document used in the I-9 process is not properly assigned to the employee claiming it.  In either situation, the Safe-Harbor Regulations provide step-by-step instructions for the employer, complete with an applicable timeline.  The steps that a reasonable employer should take after receiving notification from the SSA or the DHS include the following:

(I)        Within 30 days of receipt of the no-match letter, the employer should check its own records to determine whether the issue or discrepancy results from a typographical, transcription, or similar clerical error in the employer’s records or in its communication to the SSA or DHS.

(II)       If step (I) above does not resolve the issue, the employer should expeditiously notify the employee and request his/her verification of the employer’s records.  This would result in one of two situations: 

(A)       The employer’s information was taken down incorrectly by the employer and the employee subsequently provides the correct information to the employer.  The employer would then correct its information based on the employee’s information and would then be required to verify such information with the SSA or DHS. 

(B)       The employee insists that the original work-authorization information is correct.  The employer would then ask the employee to pursue the matter personally with the SSA and confirm the new, corrected or proper information with the employer.   The employee should be allowed 90 days to address the issued with the SSA.

(III)      If steps (I) and (II) above do not resolve the problem, then the employer has an option to complete a new Form I-9 for the employee.  Note, however, that documents used to verify the worker’s employment eligibility for the new I-9 completion cannot include any document containing the disputed social security number or any non-photo ID document.  The new I-9 should be completed within 93 days after receipt of the no-match letter.

(IV)      If the discrepancy referred to in the no-match letter cannot be resolved and the new I-9 paperwork does not provide a confirmation of employment status, the employer must either:  (A) Take action to terminate the employee, or; (B) Face the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, the employer violated the INA. 

The Safe-Harbor Regulations provide that when an employer follows the steps above after receiving no-match letters from the SSA or the DHS, the employer’s corrective actions should preclude a finding of constructive knowledge regarding the employee’s work-authorization status.

If you have questions about these regulations, or any other issues relating to the hospitality industry, please contact Celeste Yeager (214.999.4311) or Irina Plumlee (214.999.4862).