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.