Temporary restraining order for
immigration enforcement rules
Use the following links for coverage on the latest
developments in the Department of Homeland Security's "no-match" rules:
Preliminary injunction granted (Oct. 10, Reuters)
Judge
Blocks Immigration Enforcement Rules (Society for Human Resource Management)
Immigration warnings trouble local bosses (Ventura County Star)
Federal 'safe harbor' delayed (Salinas Californian)
The following article is reprinted from Ag Alert and
includes information on the proposed requirements for employers under the DHS
rules:
DHS releases Social Security 'no-match' rule
(Reprinted with permission from California
Farm Bureau Federation)
Ag Alert Issue Date: August 15,
2007
By Christine Souza
Assistant Editor
LangeTwins Vineyard partner Brad Lange,
right, discusses the new DHS no-match regulations with vineyard foreman Jose
Ceja at a LangeTwins vineyard in San Joaquin County.
Much speculation, confusion and concern has been circulating among
agricultural employers as to what the Department of Homeland Security's final
Social Security number no-match rule would contain. Now with its release by the
Bush administration, California's agriculture sector reports the regulation is a
dilemma for many employers.
"While DHS frames its new rule as giving employers a helpful and optional
safe harbor, many who receive no-match letters from the Social Security
Administration are concerned both about using and not using the rule's action
steps," said California Farm Bureau Federation President Doug Mosebar. "If he
uses them but can't resolve discrepancies, an employer would have to fire the
employees in question. If that were to happen during harvest and he couldn't
quickly find replacements, he'd lose his crop and face financial ruin.
"On the other hand," Mosebar continued, "if he doesn't use the safe-harbor
steps and continues to employ persons who turn out to be illegal, then DHS could
claim the employer broke the law because the letter gave the employer
constructive knowledge that the employees aren't work-eligible. Both situations
are very disturbing."
The DHS rule, "Safe Harbor Procedures for Employers who Receive a No-Match
Letter," was first proposed in June 2006. It is part of the Bush
administration's series of reforms announced last week to address border
security and immigration challenges. The no-match rule is expected to take
effect Sept. 12.
The rule affects employers who receive so-called no-match letters from SSA. A
no-match letter states that the combination of name and Social Security account
number submitted by the employer to SSA for an employee does not match SSA
records.
In the rule's summary, "DHS acknowledges that an SSA no-match letter by
itself does not impart knowledge that the identified employees are unauthorized
aliens," Rather, the summary states an employer's receipt of a no-match letter,
"when combined with other evidence known to the employer," may cause the
employer to have "constructive knowledge" that an employee identified in the
letter is not work-eligible. In other words, the discrepancy revealed in the
letter, plus one or more other suspicious factors known to the employer, "'would
lead a person, through the exercise of reasonable care, to know' that the
employee is not authorized to work," according to the summary. The summary and
rule state that by continuing to employ such a work-ineligible person without
taking "reasonable steps," the employer may be breaking the law.
The rule does not unconditionally require an employer receiving a no-match
letter to take any action. It does provide, however, that if the employer takes
certain steps (see accompanying box), then DHS cannot use the no-match letter as
evidence of constructive knowledge of the employee's work ineligibility.
While the regulation does not say an employer must discharge an employee for
whom a mismatch is not resolved, its summary states: "If the discrepancy
referred to in the no-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
and therefore, by continuing to employ the alien, violated (the law)."
Farm Bureau Associate Counsel Carl Borden confirmed that "the law prohibits
you from employing a person you know is not work-eligible. But you don't have to
actually know that; constructive knowledge is enough.
"For example," he said, "suppose an ICE officer tells you he suspects an
employee's work-authorization document is fraudulent." Especially when coupled
with a no-match letter, you could be found to have constructive knowledge of the
employee's lack of work authorization, at least where you failed to make
reasonable inquiry into the suspicious information."
But Borden said the rule does not require an employer to act in response to a
no-match letter. Rather, "it says that if the employer takes the specified
safe-harbor steps, then DHS cannot use a no-match letter as evidence of the
employer's constructive knowledge of work ineligibility.
"As much as DHS might like to require employers to take those steps and
perhaps not even give them safe harbor for doing so, it can't," Borden said.
"Only Congress through legislation could do that."
"So, lacking the authority to require employers to take those follow-up
steps, DHS did the next best thing," Borden continued. "It cleverly structured
the rule to provide an evidentiary safe harbor and presented it as a benefit to
employers who choose to take the action steps.
"Of course, the threat is that if you don't take them after getting a
no-match letter and DHS catches you employing persons identified in the letter
who aren't work authorized, you'll be very sorry. DHS wants to scare you into
believing it will introduce in its case against you the no-match letter as
evidence of your constructive knowledge of your employees' lack of work
authorization. And, it undoubtedly would do just that," warned Borden.
"But even without the new rule, DHS could and would take the same position in
prosecuting employers," Borden said. "After all, the summary says the rule
describes an employer's current obligations under immigration laws and merely
clarifies current standards related to constructive knowledge."
"One might ask then," Borden acknowledged, "Why did DHS issue this rule,
especially one that includes a safe harbor?" Borden said DHS likely had at least
one reason for doing so.
"It shines a bright light on the issue," said Borden. "The media have been
all over this lately, and their descriptions of the rule have sent shockwaves of
fear through segments of the employer community that rely heavily on foreign
labor. That seems to be what DHS wants, to induce employers into taking these
extra investigative steps and purging suspected illegal aliens from their
workforces, probably in recognition that DHS doesn't have enough resources to do
that on its own."
That assessment is in line with remarks made Friday by DHS Secretary Michael
Chertoff at a press conference.
"Receiving a no-match letter puts the company on notice that there is a
discrepancy or a problem with the records pertaining to a particular employee,"
Chertoff said. "What the company may not do is simply ignore the problem. And if
the company does nothing to resolve the problem or doesn't act in good faith,
that company can be held liable for employing an unauthorized worker and could
face stiff penalties or sanctions."
"This is an area where experience shows deterrence really works marvelously,"
Chertoff responded to a reporter's question. "We are starting to see employers
on their own beginning to check their work force because they see what's coming
and they don't want to take the risk of liability. So I think it's like the tax
laws. We rely on a lot of self-policing with our tax code. And I think this is
an area where we're going to get a lot of that self-policing as well."
Borden said he is unsure how deeply the new rule will affect agriculture.
"Each employer will have to decide whether to take the safe-harbor steps when
it gets a no-match letter. Again, the rule clearly states it's the employer's
option to do so," Borden said. "But if DHS catches an employer who ignored a
no-match letter with illegal aliens identified in the letter still in his
employ, the employer can count on DHS using his receipt of the letter as
evidence against him."
Borden concluded, "I think DHS will soon launch some high-profile enforcement
actions to further alarm employers into opting to use the safe-harbor steps. But
what will really matter in the long run is whether DHS is sincere about getting
tough by targeting and prosecuting enough employers on an ongoing basis to make
its message stick."
Brad Lange, partner in LangeTwins Vineyard Management Co. in Acampo, said he
will follow the no-match regulations and do what he has always done and make
sure that he is not knowingly hiring illegal aliens.
"We employ between 75 and 100 people. If those key employees happen to turn
up not having correct documentation and we are forced to terminate them, we
would be crippled in our operation, not only from an everyday point of view, but
the ability to harvest our crop," Lange said. "These employees are very
important to the everyday operation of our farm and some of them have been with
us for 25 to 30 years."
The DHS no-match regulations, Lange said, could ultimately cause farmers to
move their operations outside of the United States where workers are willing to
work in agriculture.
"I'm in the vineyard business. I have a permanent crop. I cannot just move
somewhere else. Certainly, vegetable and other growers have the ability to move,
and already have. They have voted with their feet and moved their farming
operations," Lange said. "San Joaquin County brings in $1.5 billion every single
year at the farm gate. If that agricultural economy begins to wane what will the
lack of those funds do to our local economy? I don't think people realize how
strong of a contributor agriculture is to our local economy."
The Bush administration's border-security reform package also calls for
streamlining the existing H-2A program by requiring DHS to review the
regulations implementing the program and institute changes that will provide
farmers with an orderly and timely flow of legal workers.
"Farmers and ranchers want to know that the people they hire are legally
available to work," Mosebar said. "This makes it even more urgent for Congress
to pass comprehensive reform of the immigration laws and meaningful reform of
the H-2A temporary worker program."
In response to Bush administration reforms to tighten border security, Sen.
Dianne Feinstein, D-Calif., highlighted the ongoing need to pass legislation to
address the agriculture worker shortages. Earlier this year, senators Feinstein
and Larry Craig, R-Idaho, introduced AgJOBS legislation that would ensure a
stable, reliable supply of agricultural workers.
"There is not an administrative solution, and tinkering with regulations is
not going to solve the problem. Therefore, we must pass a law that enables
agricultural workers to continue working legally if they stay in agriculture for
the next three to five years and meet other requirements. This is what AgJOBS
does," Feinstein said.
To view the no-match rule online, go to
www.dhs.gov.
How to get safe-harbor protection
To get safe-harbor protection under the new DHS rule, an employer receiving
an SSA no-match letter must take these steps:
1. The employer must check its records to see if the mismatch was due to a
record-keeping error by the employer. If it was, then the employer must correct
the error, inform SSA of the correct information, and verify with SSA that the
corrected name and number match SSA records.
The employer should document that verification and store that documentation
with the employee's Form I-9. The employer must do all of this within 30 days
after it received the no-match letter.
2. If it determines the mismatch was not due to its record-keeping error, the
employer must promptly ask the employee to confirm that the name and number in
the employer's records are correct. If the employee says they are incorrect,
then the employer must do the things specified in step 1.
If the employee says they are correct, then the employer must promptly ask
the employee to resolve the issue with SSA and advise the employee of the date
on which the employer received the no-match letter and to resolve the mismatch
within 90 days of that date
3. If the employer within those 90 days cannot verify with SSA that the
employee's name and number matches SSA records, then the employer and employee
must within 93 days after the no-match letter receipt date complete a new Form
I-9 for the employee without using the suspect number and instead using a
document presented by the employee that contains a photograph to establish only
identity or both identity and employment authorization.
The rule also applies where DHS notifies an employer of a problem with an
employee's employment-authorization documentation. The employer has 30 days to
try to resolve the issue with DHS. If it cannot do so within 90 after it got the
DHS notice, then the employer must re-verify the employee's identity and work
authorization as specified in step 3.
(Christine Souza is a reporter for Ag Alert. She may be contacted at
csouza@cfbf.com.)
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