Worksite Enforcement Update

The Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security is charged with investigating entities that unlawfully employ workers without authorization.  In 2009, this agency began focusing its reources on auditing and investigating employers and pursuing criminal penalties.  In fiscal year 2009, ICE worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.

On April 21, ICE announced that a San Diego bakery, its owner and manager were indicted on federal charges for hiring undocumented workers.  This case highlights the agency’s reliance on social security “no match letters” as evidence that workers are not authorized to work in the US.  The bakery allegedly paid the workers in cash after receiving the no match letters until the workers produced a new set of employment documents with different social security numbers.  This indictment should serve as a warning to all employers that ICE does pursue criminal charges against managers and owners of establishments in worksite enforcement investigations.

Please refer to the Worksite Enforcement Tab under Information on this website for more information and useful links.

DHS Rescission of Safe-Harbor Procedures for Employers Who Receive a No-Match Letter

Although the term “rescission of safe-harbor procedures” sounds like a negative, in fact, the Department of Homeland Security’s (DHS) rescission of these safe harbor procedures relieves employers of responsibilities that were onerous and had dubious impact towards meeting the administration’s goal of reducing unauthorized employment.

 On August 15, 2007 DHS released the final version of the Immigration and Customs Enforcement (ICE) regulation, “Safe Harbor Procedures for Employers Who Receive a No-Match Letter.”  These regulations greatly increased the burden on employers who received a social security “no match” letter or discrepancy notice from DHS to take certain steps or face criminal and civil liability for unlawfully employing individuals without employment authorization.

Unfortunately, this proposed DHS regulation made the law more unclear for many employers.  How many no-match letters could they receive and have the employee “fix?”  What if the employee brought back something that appeared genuine with a different name?  Employees were also caught in the middle.  Many employees would be the subject of these letters based on a name change due to marriage, a typographical error or for some other innocuous reason.  And forget about having the Social Security Administration (SSA) fix the error in the 90 days prescribed by the regulation.  In the lawsuit challenging the rule, the former Secretary of the Social Security Administration stated that it would be close to impossible to get an error fixed in the database and provide an individual with the proof needed to satisfy the regulation within 90 days.

 All I can say is good riddance to this “safe harbor.”