Ask Rita: Facing an Immigration Quandary

Ask Rita in HR • By Ellen Aldridge • December 31, 2008 • Email Print

Dear Rita: Our organization recently got letters from the Social Security Administration (SSA) informing us that two of our employees’ social security numbers do not match with the social security database. We want to keep these employees; what should we do and what are the risks?   - Baffled Boss

Dear Baffled:

Immigration law enforcement is not only a hot political issue; employers of all kinds are also feeling the heat. An employer that does not comply with the Immigration Reform and Control Act (IRCA) by verifying that an individual is eligible to work in the U.S. can be subject to fines of $110 to $1,100 per employee and criminal sanctions in egregious situations. Just because you've received this letter doesn't mean you need to terminate these employees to comply with the law. But it's a little complicated.

The U.S. Immigration and Customs Enforcement (ICE), the investigative arm of the Department of Homeland Security (DHS), s responsible for enforcing these laws.  ICE carries out workplace raids and records audits to ensure compliance with IRCA. But look at the latest case to hit the news: in June, Aramark, a Los Angeles employer, terminated 33 janitors when their social security numbers did not match the government’s database. So you would think the employer was following the law. Not so. A federal appeals court ordered Aramark to reinstate the 33 janitors with back pay, finding that the “no-match” letters were not proof of ineligibility to work in the U.S., and that the three days the employer gave the employees to correct the problem before firing them was unreasonable.

So what is an employer to do when you have multiple objectives: complying with the law to safeguard your organization, keeping valued employees, and being fair?

DHS issued regulations in August 2007 to provide what it calls “safe harbor” procedures for employers who receive “no-match” letters, meaning that if you follow these procedures, your organization is protected. However, a federal court blocked the enforcement of these safe harbor procedures in October of 2007. While this issue is still unresolved by the courts (writing in June of 2008), the regulations provide some guidance and it would be good practice to follow them until this area of the law is resolved.

The “safe harbor” regulations direct employers to respond to a no-match letter as follows:

Within 30 days after receipt of a letter, the employer must check its records to ensure that the mismatch was not the result of an employer error.

If this does not resolve the problem, the employer must request the employee to confirm the accuracy of the information the employee provided to the employer.

The employer should then ask the employee to resolve the issue with the SSA within 90 days and provide new documentation.

If these steps lead to resolution of the problem, the employer should contact the SSA and should retain a record of the time and date of verification. The SSA Verification Service can be contacted at www.socialsecurity.gov/employer/ssnv.htm.

If none of the above resolves the matter within 90 days after receipt of the no-match letter the employer should consider termination of the employee. Before terminating an employee, however, due to the fluctuating law, consultation with legal counsel is recommended.

That said, according to the ICE website (www.ice.gov/pi/news/factsheets/worksite.htm) in 2007 there were 4,077 administrative arrests and 863 criminal arrests nationwide for employment immigration violations. Given the vast number of employers nationwide, and the scope of this problem, the odds that a nonprofit will get audited for IRCA compliance absent a direct complaint are slim. Follow the Three-Step Immigration Compliance Checklist for Employers to avoid problems in the future.

Three-Step Immigration (I.R.C.A.) Compliance Checklist for Employers

The best protection for employers seeking to comply with the law is to
keep accurate paperwork demonstrating your good faith efforts to comply
with these complex and confusing immigration laws.

Three steps that will help:

1. Keep complete Form I-9s for all employees hired after November 6, 1986, in one main file, with copies of the documents that the employees provided to verify their
eligibility to work. Starting December 26, 2007, employers were required use a newly revised Form I-9.  The latest version of  Form I-9 and a listing of  the documentation required as proof of eligibility to work in the U.S.  may be obtained at www.uscis.gov. You can find the revision date of the Form I-9 you have on the lower right corner of the form; the latest version has a revision date of 06/16/08.

2. Consider using the E-Verify system to check the validity of the information provided by your employees. E-Verify is an online social security number/visa confirmation system
that is offered by the Social Security Administration (SSA) and the Department of Homeland Security. Be advised, though, that E-Verify has both risks and benefits. Use of E-Verify provides a defense against an Immigration and Customs Enforcement accusation that the employer had "constructive knowledge" of an employee's false documentation. However, it could also be used to prove that an employer notified by E-Verify that the employee's documention is questionable knowingly violated the law unless the employer takes action to get accurate documentation or terminate the employee.  While E-Verify is mandatory for government
contractors and for employers in some states, it still is voluntary for all other employers. Sign up at www.dhs.gov/xprevprot/programs/gc_1185221678150.shtm.

3. In the event that your organization receives a no-match letter or a notice of suspect documents from the SSA, follow the safe harbor procedures outlined in this article.