Worksite compliance is complicated enough on the immigration front with the various agencies within Department of Homeland Security (DHS). Now, with the I-9 audit process, employers and attorneys deal directly with Immigration and Customs Enforcement (ICE), but the requests from ICE require that we review many ancillary legal issues that could arise from providing requested information and documentation to ICE. Specifically, requests by ICE requiring employers to provide any and all Social Security Administration’s “No-Match” Letters brings into question compliance issues with SSA, as well as potential discrimination issues overseen by the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). We would like to address a few of the issues that we have encountered and which we believe need to be raised.
Should an Employer Copy and Retain Completed “No-Match” Letters?
Has anyone really looked at everything printed on a Social Security “No-Match” Letter? The letter actually states “Do Not Copy” at the top. At the time of an I-9 audit an ICE subpoena may demand that an employer turn over any and all “No-Match” letters. What if an employer complied with the SSA “Do Not Copy” directive? ICE has stated that employers should make copies of the “No-Match” letters so that they may be provided in response to an I-9 audit request. However, several ICE agents are unaware that the “No-Match” letters specifically state that they are not to be copied and thus may be suspicious of an employer that did not make copies. We have brought this to the attention of individual ICE agents but the subpoena requests for such copies continue. But isn’t copying in violation of SSA’s “no copy” rule? Well, there does not seem to be any SSA penalty for copying the “No-Match” letters and on the ICE side, we have not yet seen any penalties for failing to provide copies of the “No-Match” letters if the employer did not in fact make copies. But then how will the employer prove to ICE that they responded to the “No-Match” letters? Employers and attorneys need to weigh the potential ramifications of the actions if the “No-Match” letter is copied versus if it is not copied as unfortunately there is no correct answer to the question of “to copy or not to copy”.
Another question that stems from this issue is that once copied, how long should an employer retain copies of the “No-Match” letters? There is no SSA retention requirement (which we have confirmed by calls to SSA) because the letters should not even be copied in the first place. How about for purposes of preparing for an I-9 audit by ICE — Should the employer maintain copies of the letters for one year? Three years? Five years? Should the requirement be to retain copies of the letters for as long as required by law to retain the I-9 Form (i.e., 3 years after hire or one year after termination, whichever is later)?
With all of this uncertainty, we recommend that employers, together with their attorneys, determine what should be the best policy for their company and then implement such policy consistently throughout the organization. If the policy is to not make copies, the written policy should be turned over to ICE in response to an I-9 audit request for any and all copies of “No-Match” letters. Given that there is no retention requirement either with SSA or ICE, it is feasible that an employer could shred any “No-Match” letters it has received in the past. But, would this be obstruction of justice? Of course – the answer is yes if such documents are destroyed during the course of a government audit but otherwise, no.
What Are an Employer’s Obligations Upon Receipt of a No-Match Letter?
Now that the “No-Match” letters are being issued again, what are employers required to do with them? Is it okay to terminate the employment of an individual who has received a “No-Match” letter? The “No-Match” letters specifically state the following: “It is not a basis, in and of itself, for you to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual…Moreover, this letter makes no statement about your employee’s immigration status.” ICE seems to view these “No-Match” letters as notice to employers that an individual may in fact not have valid authorization to work in the United States. In fact, ICE has publically commented that the receipt of these letters gives an employer “knowledge”. However, for years no guidance was ever provided about how employers should address issues of immigration status when a “No-Match” letter was received.
ICE finally addressed this issue in its August 15, 2007 regulations that provided employers with a specific process to follow when they receive a “No-Match” letter, but the regulation was rescinded on October 7, 2009. SSA’s issuance of “No-Match” letters was suspended during this time and resumed just recently in April 2011. So, now what should employers do? ICE has stated at various conferences that although the regulation has been rescinded, the best practice for employers is to create a policy that follows the regulation process (i.e., checking records, contacting employee, etc.) after receipt of an SSA notification. Unfortunately, whether or not an individual possesses valid work authorization may possibly not be resolved within the time period provided in the rescinded regulation (93 days). In fact, the SSA has all but admitted this in the E-Verify context, where they note that tentative nonconfirmations (TNCs) can be put “in continuance” for up to 120 days in order to resolve these same types of discrepancies. The rescinded regulatory process also ends with an employer having to obtain a new I-9 from an employee unable to resolve the name/number discrepancy.
Employers should establish a procedure/policy to address “No-Match” letters at the time they are received by the company. So, does an employer whose policy allows for more time than the proposed regulation risk liability? What are the employer’s obligations for continuing to follow up with the employee? Answers have not been provided by ICE which continues to believe that such an individual may in fact not have valid immigration status. We also have to remember that OSC is involved and termination of the employee may lead to a discrimination charge filed against the employer. Attorneys at OSC have recently commented that if an employer chooses to proceed with a policy similar to the one provided in the regulation, the employer must be careful to provide employees with sufficient time to resolve any discrepancies as the SSA does not always provide “speedy” resolution to issues. So, while the SSA states that a “No-Match” letter is not indicative of an immigration status issue, ICE takes the view that it puts an employer on notice of a potential immigration issue and OSC cautions employers to tread lightly when responding to a “No-Match” letter so as to avoid discrimination.
SSNVS – Useful or Problematic?
Finally, we would like to discuss the Social Security Number Verification Service (SSNVS). This SSNVS allows registered users (i.e., employers) to verify the names and Social Security Numbers of employees against SSA records. The rescinded “No Match” regulation required employers to use the SSNVS as part of the “No-Match” process. Previously, the IMAGE (ICE Mutual Agreement between Government and Employers) program required all participants to sign up for and run all of a company’s employees through the SSNVS verification process. Now, IMAGE merely suggests that employers may use SSNVS as one of its tools to ensure that its employees are authorized to work in the United States. But, SSA states that an employer may use SSNVS for payroll purposes only, not to determine whether or not an individual is authorized to work in the United States and for either new hires or the entire workforce. OSC has commented that although an employer may use SSNVS, it should do so for new hires only. So, can/should employers run all employees or just new hires thorough SSNVS if they choose to use the verification system? And what happens if there is a discrepancy? Are employers put on notice that an individual may in fact not be authorized to work in the United States? Are employers then in a worse situation by signing up for SSNVS if they cannot do anything with the results? What process must an employer then follow? Is it the same as in the case of when a “No-Match” letter is issued by SSA? Lots of questions, but no real answers because there is no clear consensus amongst the various agencies.
Unfortunately no concrete guidance exists to address the issues raised here today. The Federal government agencies appear to be operating in a vacuum and not communicating with each other in order to provide clear guidance to employers and their counsel. With the increase in Federal worksite compliance audits, attorneys and employers cannot operate in a vacuum either and must consider how one issue affects another in the compliance arena so as not to get burned!
Originally published by LawLogix Group INC. Reprinted by permission.
Sharon R. Mehlman is one of three Co-Managing Partners of Larrabee | Mehlman | Albi | Coker LLP, a specialty law firm engaged exclusively in the practice of United States Immigration and Nationality Law. Sharon Mehlman is a graduate of the University of San Diego, School of Law where she earned her Juris Doctorate degree.Ms. Mehlman is a member of the American Bar Association, the California Bar Association, the American Immigration Lawyers Association (AILA) and is active in the community. She is also a member of the Alliance of Business Immigration Lawyers, a group of leading immigration attorneys who work together on "best practices". Ms. Mehlman is past Chairperson, Vice Chairperson and Secretary of the San Diego Chapter of AILA and is a frequent speaker on business immigration issues. She is also past Chairperson of AILA’s California Service Center (CSC) liaison committee. Ms. Mehlman is currently the Chair of AILA’s USCIS Service Center Operations (SCOPS) Committee and AILA’s USCIS Benefits Committee where she works with USCIS Headquarters on a variety of immigration issues.
Kimberley Best Robidoux has been with Larrabee | Mehlman | Albi | Coker LLP since 2004.Kimberley focuses on corporate immigration matters for the high-tech, pharmaceutical/biotech and hospitality industries to assist companies with their implementation of immigration policies and procedures. She counsels corporate clients on immigration and related business matters, including corporate nonimmigrant cases, such as the H-1B, TN, O-1, L-1, E-1/E-2, and E-3 visa classifications, as well as employment-based immigrant petitions, such as outstanding researcher, extraordinary ability, multinational manager, and labor certification. She also advises on immigration consequences of mergers, acquisitions, and reductions in force. Kimberley also is well-versed in the area of employer I-9 and E-verify requirements and has successfully defended employers against I-9 compliance audits, conducted "in-house" audits to asses and assist employers in bringing I-9 records into compliance and performed I-9 management training. Kimberley also represents individuals with family-based and naturalization matters.