On October 10, 2007, the United States District Court for the Northern District of California granted a preliminary injunction against the Department of Homeland Security’s (DHS) new “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” final rule that was to have taken effect September 14, 2007. The District Court’s order places the final rule on hold pending the outcome of litigation.
U.S. immigration law makes it unlawful for an employer to knowingly hire or continue to employ a worker not authorized to work in the United States. At time of hire, employers are required to complete a Form I-9 for each employee. Form I-9 verifies that an employee is authorized to work in the United States through documentation that confirms the employee’s identity and work authorization. Employers are not liable for invalid documentation if the employer made a good faith determination that the required documents appear to be genuine. Employers are not required to be document experts and are protected by the law when they accept facially valid documentation from employees. However, an employer can be deemed to have “constructive knowledge” of a worker’s lack of work authorization if the employer has reason to believe, under all circumstances, that the employee is not authorized to work.
The final rule would create a five-step procedure to follow in the event the employer receives a “No-Match Letter,” from the Social Security Administration (SSA) or a “Notice of Suspect Documents” letter from DHS. A “No-Match” letter details discrepancies in SSA records between an employee’s name and Social Security number while a DHS “Suspect Documents” letter describes discrepancies in certain employment verification forms. The final rule would make the employer’s inability to resolve a No-Match or Suspect Documents letter a basis for implying constructive knowledge that a worker lacks proper work authorization. However, the final rule would also create a safe harbor if the employer follows a five-step process.
That five-step process requires employers to: (1) conduct an internal check of employer records for discrepancies or errors; (2) request the employee confirm the accuracy of company records; (3) have the employee resolve any remaining discrepancy; (4) prepare a new Form I-9 utilizing documentation not subject to the discrepancy; and (5) either establish work eligibility through these steps or terminate employment. If the process cannot be concluded within 93 days, the employer must terminate the employee or risk having DHS find that the employer had constructive knowledge of the employee’s lack of employment authorization.