In a proposed rule published in the August 19, 2009 Federal Register – “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” – the Department of Homeland Security (DHS) proposed to amend its regulations by rescinding the amendments issued on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of “no-match” letters from the Social Security Administration (SSA) notifying an employer that the social security information submitted by the employer for certain employees did not match the information in SSA’s databases.

Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including increased participation in the U.S. Citizenship and Immigration Services’ (USCIS) electronic employment verification system (E-Verify).

Further development of the USCIS E-Verify system warrants refocusing DHS’s priorities on the implementation of that compliance protocol. DHS believes E-Verify is an essential tool for employers committed to maintaining a legal workforce. E-Verify compares employee information from the Form I-9 against more than 455,000,000 records in the SSA database and more than 80,000,000 records in DHS immigration databases.

E-Verify has expanded exponentially in the past several years to include over 138,000 employers representing over 500,000 locations; on average, 1,000 employers enroll in E-Verify each week. Participation has more than doubled each fiscal year since 2007. As of August 1, 2009, more than six million queries have been run through the system in Fiscal Year 2009.

Accuracy of the E-Verify program also has improved. An independent evaluation completed in December 2008 found that approximately 96.9 percent of all cases queried through E-Verify are instantly found to be work-authorized. Of the 3.1 percent of queries that resulted in a mismatch of the information in SSA or DHS databases, 0.3 percent of queries were successfully contested. The remaining 2.8 percent either did not contest the determination or were unsuccessful in contesting, or were found unauthorized to work at the secondary verification stage.

The proposed rule also states that the DHS definition of the term “constructive knowledge” will revert back to its pre-August 2007 state in that the receipt of an SSA no match letter put the employer on constructive notice of a potential illegal worker will no longer be part of the regulatory definition. Instead, “constructive knowledge” may include, but is not limited to, situations where an employer:

  1. Fails to complete or improperly completes the Employment Eligibility Verification Form (Form I-9);
  2. Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or
  3. Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.

This Federal Register contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. Comments must be submitted not later than September 18, 2009. Comments may be submitted – identified by DHS Docket No. ICEB 2006-0004 –at the Federal eRulemaking Portal: http://www.regulations.gov.

A designated E-Verify service agent, I-9Compliance.com – offered by leading pre-employment screening provider Pre-Employ.com – helps employers maintain full I-9/E-Verify compliance, eliminate errors, reduce liability from hiring illegal workers, and ensure jobs for legal workers. For more information, download a FREE white paper “15 Facts You Should Know About I-9 Compliance,” visit www.i-9compliance.com, email sales@i-9compliance.com, or call 1-800-300-1821.

tahearn@i-9compliance.com