U.S. Department of Homeland Security Rescinds Safe Harbor Regulation for Employers That Receive "No Match" Letters

Posted on August 20, 2009 by Kyle Knapp

On August 19, 2009, the Department of Homeland Security (DHS) announced that it was rescinding its August 2007 and October 2008 regulatory amendments concerning actions employers can take to benefit from "safe harbor" protection after receiving notification from DHS or the Social Security Administration that an employee's reported work authorization or Social Security information does not match government records. In October 2007 a U.S. District Court in California preliminarily enjoined implementation of the regulations. Under the revised regulations, if employers took certain actions within prescribed timeframes, they could shield themselves from liability for allegedly employing individuals who lacked authorization to work in the United States. For additional information on the revised regulation, please review prior blog postings on this topic. 

In its August 19, 2009 announcement, DHS now explains that it intends to pursue employment authorization enforcement actions through programs such as E-Verify and IMAGE. E-Verify is DHS' free online system employers can use to verify the employment authorization of newly-hired employees. Employers still must follow the I-9 requirements for reviewing and recording information from the documents new employees present to evidence their work authorization. The employer then enters certain information from the I-9 into the E-Verify system. In most cases, the employer should receive an instant response concerning the validity of the employee's work authorization status. In other cases, the employer must follow additional steps to verify the employee's work authorization status.
 

IMAGE refers to ICE [Immigration and Customs Enforcement] Mutual Agreement Between Government and Employer. IMAGE allows employers to enroll in the DHS-sponsored program to receive training in hiring practices, document examination and verification and anti-discrimination. It also involves enrolling in the E-Verify system and agreeing to DHS audits of I-9 records.  See our prior posts on E-verify.
 

Both E-Verify and IMAGE present advantages and disadvantages. The advantages include ensuring that an organization's employees have proper work authorization and limiting exposure in the event of a government investigation. The primary disadvantages include the additional administrative cost to implement the programs and opening up an employer's I-9 records to provide unfettered access to government officials in their quest to locate unauthorized workers and punish employers in the process. Therefore, in addition to evaluating the costs of implementation, enrolling in either program requires careful consideration of the employer's workforce, record keeping practices and potential exposure in the event of an investigation.
 

Regardless of whether employers choose to enroll in E-Verify or IMAGE, DHS's rescission of the No-Match regulation does not mean employers can ignore no-match letters. Under existing regulations, there still is an argument that receiving such a letter puts the employer on sufficient notice of a potential problem with the documents it accepted to verify employment eligibility. Prior cases have held that this notice requires further inquiry. Employers need to exercise caution in this area and work closely with counsel to ensure compliance with both work authorization verification procedures and anti-discrimination laws. Based upon statements of DHS Secretary Janet Napolitano, it appears enforcement actions will continue. The no-match letter often is the jumping off point for ICE investigations. And, as the DHS announced in rescinding the regulation, enforcement actions against employers will continue. Therefore, employers need to continue to exercise due caution in this area and promptly address allegations or notices concerning the work authorization status of their employees.
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ICE Issues I-9 Audit Notices to More than 650 Employers

Posted on July 2, 2009 by Robert Cohen

The Immigration and Customs Enforcement (ICE) announced on July 1, 2009 that I-9 audit notices have been presented to 652 employers across the country. (To read the press release, click here.)

Notwithstanding the Obama Administration’s announcement that it will change the focus of immigration enforcement to concentrate on abusive employers, this announcement reflects a new initiative to step up I-9 enforcement actions.

By contrast, only 503 similar notices were issued during the entire FY2008. The ICE announcement included the point that these employers were not randomly selected but have been identified from leads and other investigative information.

If past experience is a guide, we can expect that at least some of these notices will result in further enforcement actions against the identified employers.

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Supreme Court Restricts Use of Identity Theft Statute to Combat Undocumented Workers

Posted on May 5, 2009 by Brian Hall

Resolving a split among the circuit courts, the U.S. Supreme Court yesterday in Flores-Figueroa v. United States significantly limited a tactic used by U.S. Immigrations and Customs Enforcement (ICE) to address the issue of undocumented workers. 
 

In particular, ICE has used the Identity Theft Penalty Enhancement Act as a way to pressure undocumented workers.  That Act created the crime of “aggravated identity theft,” which occurs when a person “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” in connection with the commission of certain enumerated felonies, including immigration violations. Because violation of the Act carries a mandatory two-year jail sentence, ICE had been using the threat of prosecution for aggravated identity theft to convince undocumented workers to plead guilty to other lesser immigration offenses such as the misuse of social security numbers. 
 

Under the Court’s decision, however, the Act requires the Government to prove that the defendant-worker knew that the means of identification at issue actually belonged to another person, not merely that the worker knew that the means of identification used to obtain employment were fraudulent. This holding makes the threat of prosecution under the Act much less realistic because ICE will have to prove that the individual using the false identification information also knew that the information belonged to a specific individual – as opposed to information relating to an entirely fictitious identity.
 

Though the Flores-Figueroa decision weakens the threat of aggravated identity theft prosecution as an immigration-enforcement tactic, it is not clear how frequently ICE would have used it under the Obama Administration in any event. Indeed, on April 30, 2009, Janet Napolitano, Director of Homeland Security, issued a Fact Sheet directing ICE to shift its enforcement focus from targeting undocumented workers to targeting the employers who hire them. Specifically, the Fact Sheet says, “[e]ffective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.”

 

These developments should prompt employers, particularly those in industries that tend to attract undocumented workers, to pay particular attention to their hiring practices to ensure compliance with immigration laws.
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