DHS to begin Clamping Down on Employers who Knowingly Retain Employees Who are Unauthorized Aliens
Did you know that your community association, management company or business may need to take extra precautions to ensure that you do not continue to employ an unauthorized alien? On September 14, 2007, the Department of Homeland Security's (DHS) Final Rule entitled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter ("Rule") will go into effect. Here are the basics you need to know about the Rule:
? The Immigration and Nationality Act ("INA") provides in part that 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."
? The new Rule provides guidance for employers on what will constitute knowing employment of an unauthorized alien. Under the Rule, "knowing" includes actual knowledge that the employee is an unauthorized alien and "knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition" - also known as "constructive knowledge." While DHS will look at the "totality of the circumstances" present in a particular case to determine whether an employer has knowledge that an employee is an unauthorized alien, here are two examples outlined in the Rule where constructive knowledge will be inferred upon the employer:
1. Written notice to the employer from the Social Security Administration ("SSA") that the name and social security number submitted for an employee does not match SSA records. This written notice is usually sent to an employer in the form of an "Employer Correction Request" also known under the Rule as a "No-Match Letter."
2. Written notice from DHS that the immigration status document, or employment authorization document, presented or referenced by the employee in completing Form I-9 (Employment Eligibility Verification Form) was assigned to another person, or there is no agency record that the document was assigned to anyone.
? What steps should you take if you receive a No-Match Letter from SSA or written notice from DHS that the immigration status document or employment authorization document presented or referenced by the employee was assigned to another person or does not exist? The Rule suggests that employers take the following "reasonable" steps to help ensure that the employer is not found to have constructive knowledge that an employee is an unauthorized alien. Employers, who take the steps outlined below in a timely manner, should receive "safe-harbor" from liability associated with employing an unauthorized alien in violation of the INA prohibition.
1. Within 30 days upon receiving written notification from SSA or DHS of a no-match with government records, an employer should check the appropriate records to ensure that there was no clerical error in the documents sent to SSA or DHS. If there was an error, the employer should send the corrected documents to SSA or DHS to ensure that there is a match with the appropriate government records.
2. If no clerical error is found by the employer, the employer should promptly request that the employee confirm the records submitted by the employee to the employer are correct. If the records of the employer are not correct, the employer should correct the records and send them to SSA or DHS to ensure there is a match with the appropriate government records. If the employee contends that the records of the employer are correct, the employer should instruct the employee to personally pursue this matter with SSA or DHS to clear-up the discrepancy.
3. If the discrepancy between the employer's records and the records of SSA or DHS is not cleared-up within 90 days of the employer initially receiving the No-Match Letter from SSA or a discrepancy letter from DHS, the employer may follow a verification procedure described in the Rule. Online verification services are available at the following Links:
Social Security Administration (SSA) Social Security Number Verification Service: http://www.ssa.gov/employer/ssnv.htm
Department of Homeland Security (DHS) and US Citizenship and Immigration Services Bureau E-Verify:
https://www.vis-hs.com/EmployerRegistration/StartPage.aspx?JS=YES
4. If, after going through the verification process, an employer is unable to verify that an employee is not an unauthorized alien, the employer must decide whether to terminate the employment of the unauthorized alien or face the risk of DHS determining that the employer had actual or constructive knowledge that the employee was an unauthorized alien.
? If DHS determines that an employer knowingly retains an employee who is an unauthorized alien, DHS may fine the employer from $250 to $2,000 for each unauthorized alien employee. Further, if DHS determines that an employer has engaged in a pattern or practice of knowingly retaining unauthorized aliens as employees – DHS may fine the employer up to $10,000 for each such employee.
Finally, under the Rule, DHS encourages employers following the procedures above to retain all documentation and records from the process including notes from applicable telephone calls, records, emails and correspondence with SSA or DHS relative to the employee in question, and records or documentation of any other steps the employer has taken to verify the status of an employee. An employer is required to retain copies of all I-9 forms of an employee for at least one year after the employee has left employment with the employer.