November 03, 2008

The Department of Homeland Security has issued a Supplemental Final Rule for its “no-match” rule, which requires employers to resolve discrepancies between employee Social Security numbers and Social Security Administration records. The 100-page Supplemental Final Rule, released on October 23, essentially reiterates the substantive requirements of the Final Rule issued in 2007. 

The Final Rule, originally issued in August 2007, was blocked by a court injunction on October 10, 2007.   The U.S. District Court for the Northern District of California had enjoined implementation of the rule based on challenges raised by employer associations which asserted that the rule violates the law, violates workers' rights, imposes burdensome obligations on employers, and will cause discrimination against workers perceived to be immigrants. In his ruling in favor of the employer groups, Judge Charles R. Breyer said, “[P]laintiffs have raised a serious question whether the rule is arbitrary and capricious ….”

In response to the District Court decision, DHS released its Proposed Supplemental Final Rule for public comment on March 26, 2008. Now, almost six months after the end of the comment period, DHS has released its Supplemental Final Rule and has indicated that it will return to the District Court to request that the injunction be lifted so that the Supplemental Final Rule can be implemented. 

While this rule and the extensive employer comments were under consideration, the SSA did not send out any no-match letters to employers. Now that implementation of the rule appears imminent, employers should prepare for resumption of SSA no-match letter mailings, and familiarize themselves with the procedures for addressing these notices.

The rule provides employers a “safe harbor” from liability for unlawful employment of aliens should employers receive a no-match letter from SSA or a “notice of suspect document” from DHS. Receipt of a notice from SSA or DHS will not impute “constructive knowledge” of unlawful employment on the employer if the employer takes the following steps:

1. If the discrepancy is a clerical mistake, within 30 days, the employer must correct the error, share the correction with SSA/DHS and verify with SSA/DHS that the employee’s name and Social Security account number, as corrected, match SSA/DHS records. These actions should be noted and stored with the employee’s Form I-9.
   
2. If there is no clerical mistake, the employer should request that the employee confirm that the name and Social Security number are correct. If the employee insists that the employer’s records are correct, the employer should ask the employee to make the correction with SSA/DHS within 90 days.
   
3. If the employee cannot verify his or her information within 90 days, then the employer must re-verify the employee’s information by day 93 by completing a new I-9. The employer cannot accept any document referenced in any written notice as a verification document for the new I-9. 

Employers should stay tuned for an update on implementation once the District Court considers the final rule and makes a decision on whether to lift the injunction.  Jackson Lewis immigration group attorneys are available to discuss any questions you may have regarding this development.

© 2007 Jackson Lewis LLP.  Reprinted with permission.  Originally published at www.jacksonlewis.com.  Jackson Lewis LLP is a national workplace law firm with offices nationwide.