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Proposed ICE Regulation on Social Security Mis-Match Letters

By Sean G. Hanagan, William J. Manning and Otieno B. Ombok
  • June 19, 2006

On June 14, 2006, the Bureau of Immigration and Customs Enforcement ("ICE"), of the Department of Homeland Security ("DHS"), published a proposed regulation regarding how employer(s) respond to mis-match letters from the Social Security Administration ("SSA") (71 FR 34281 (06/14/06). The proposed regulation specifies "safe harbor" procedures for employers which receive such letters. By taking these steps in a timely fashion, an employer could avoid a DHS finding, based on the totality of circumstance present in the particular case, that the employer had constructive knowledge that the employee was not authorized to work in the United States. The ''safe-harbor'' procedures include attempting to resolve the mis-match and, if it cannot be resolved within a certain period of time, verifying again the employee's identity and employment authorization through a specified process. Written comments are due on or before August 14, 2006.

Under current immigration regulations, it is unlawful for an employer, after hiring an alien for employment, to continue to employ the alien with knowledge that the alien is (or has become) an unauthorized alien. An employer which hires or continues to employ a person with knowledge that the person is not authorized to work in the U.S. is liable for civil and criminal penalties. The term ''knowing'' includes not only actual knowledge but also constructive knowledge i.e. 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.

The proposed rule adds two more examples of situations that may lead to a finding that an employer had such constructive knowledge to the current regulation's definition of ''knowing.'' These additional examples involve an employer's failure to take reasonable steps in response to either of two events:

  1. The employer receives written notice from the SSA that the combination of name and social security account number submitted to SSA for an employee does not match agency records; or
  2. The employer receives written notice from the DHS that the immigration-status or employment-authorization documentation presented or referenced by the employee in completing Form I-9 was not assigned to the employee according to DHS records.

"Safe-harbor" Procedures

  1. After receiving a mis-match letter, the employer should check its records promptly to determine whether the discrepancy results from a typographical, transcribing, or similar clerical error in the employer's records or in its communication to the SSA or DHS. If there is such an error, the employer should correct its records, inform the relevant agencies and verify that the name and number, as corrected, match agency records. ICE would consider a reasonable employer to have acted promptly if the employer took such steps within 14 days of receipt of the mis-match letter.
  2. If such actions do not resolve the discrepancy, promptly request the employee to confirm that the employer's records are correct. If they are not correct, the employer should take necessary actions needed to correct them, inform the relevant agencies, and verify the corrected records with the relevant agency. If the records are correct according to the employee, the employer should ask the employee to pursue the matter personally with the relevant agency, such as by visiting a local SSA office, bringing original documents or certified copies required by SSA, which might include documents that prove age, identity, citizenship or alien status, and other relevant documents, such as proof of a name change, or by mailing these documents or certified copies to the SSA office, if permitted by SSA. ICE would consider a reasonable employer to have acted promptly if the employer took such steps within 14 days of receipt of the mis-match letter.
    A discrepancy will be considered resolved only if the employer verifies with SSA or DHS, as the case may be, that the employee's name matches in SSA's records a number assigned to that name, and the number is valid for work or is valid for work with DHS authorization (and, with respect to the latter, verifies the authorization with DHS) or that DHS records indicate that the immigration status document or employment authorization document was assigned to the employee. In the case of a number from SSA, the valid number may be the number that was the subject of the mis-match letter or a different number, for example a new number resulting from the employee's contacting SSA to resolve the discrepancy.
  3. If the discrepancy is not resolved within 60 days of receipt of the mis-match letter, the employer should follow a specified employee identity and work authorization verification procedure. If the described procedure is completed, and the employee is verified, then even if the employee is in fact an unauthorized alien, the employer will not be considered to have constructive knowledge of that fact. If the discrepancy referred to in the mis-match letter is not resolved, and if the employee's identity and work authorization cannot be verified using a reasonable verification procedure, then the employer must choose between taking action to terminate the employee or facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien.

The verification procedure requires completion of a new Form I-9, using the same procedures as if the employee were newly hired, with certain restrictions as follows:

  1. Both Sections 1 and 2 would have to be completed within 63 days of receipt of the mis-match letter;
  2. No document containing the Social Security Number or alien number that is the subject of the mis-match letter, and no receipt for an application for a replacement of such a document, may be used to establish employment authorization or identity or both.
  3. No document without a photograph may be used to establish identity (or both identity and employment authorization).

The Proposed Rule notes that:

  • Imputation of constructive knowledge that an employee is an unauthorized will depend on the totality of relevant circumstances;
  • Employers should apply safe harbor procedures consistently and uniformly;
  • The proposed regulation only specifies ''safe-harbor'' procedures employers could follow to avoid imputation of "constructive knowledge" that an employee is not authorized to work in the U.S. The regulation would not preclude DHS from finding that an employer had actual knowledge that an employee was an unauthorized alien. An employer with actual knowledge that one of its employees is an unauthorized to work could not avoid liability by following the procedures described in the proposed regulation; and
  • The resolution of discrepancies in a mis-match letter, or other information that an employee's Social Security Number presented to an employer matches the records for the employee held by the SSA, does not, in and of itself, demonstrate that the employee is authorized to work in the U.S.

©2006 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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