DHS Issues Final Rule Concerning Social Security No-Match Letters – Falls Short of Addressing Security and Economic Needs
On Friday, August 10, the Department of Homeland Security (DHS) issued a final regulation concerning “no-match letters.” The final rule was published in Wednesday’s Federal Register. The rule takes effect on September 14.
Current law already prohibits employers from knowingly employing unauthorized aliens, and the term “knowingly” has been interpreted by regulation and case law to include constructive knowledge.
The new rule (1) adds new examples of situations that may establish “constructive knowledge” and (2) provides “safe harbor” procedures for employers to follow in order to avoid liability for having constructive knowledge. The new examples relate to the employer’s failure to take “reasonable steps” after receiving information either from the Social Security Administration (SSA) that employee name and social security numbers submitted on W-2s do not match SSA records, or information from DHS that an immigration status or I–9 document presented by an employee was not assigned to that employee according to DHS records. The “safe harbor” procedures include attempting to resolve the mismatch and, if it cannot be resolved within a specified period of time, verifying the employee’s identity and employment authorization through a specified process.
The new rule does not directly impose any new requirements on employers, but it further demonstrates the administration’s interest in stepping up enforcement of immigration laws and provides important guidance as to actions employers should take to reduce their risk of noncompliance.
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For more information, contact Kelly Knott at firstname.lastname@example.org or (202)547-4685.
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