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.”

Nice Guys Don't Have a Chance

Julie Myers Wood, the former head of US Immigration and Customs Enforcement, has no clue what it is like for an employer trying to run a small, or even large, business.  In her recent article, Nice Guys Finish Last, she describes an overly simplistic world of employers who are trying to do “good” by only employing lawful workers and others who can underbid those “good” employers by knowingly hiring workers who are not authorized to work in the United States.  She criticized the Department of Homeland Security of “dropping the social security no match rule” which placed the burden on employers who received social security no match letters to have the error corrected or risk liability for employing an individual unlawfully.

When I meet with my corporate clients, they are trying to wade through the countless regulations and laws that relate to employment authorization, discrimination, and unfair employment practices.  These employers are the “nice guys” who want to follow the law, but don’t know which laws to follow.  They know that by asking for a specific document in an I-9 context, they may have an unfair employment practice claim.  They know that if they unduly question only the hispanic looking applicants, they will have a discrimination claim on their hands.  They also are advised by me that the legacy INS has previously stated that a social security “no match” letter alone is not evidence that an employee is not authorized to work in the United States.  I have also advised them that the former Secretary of the Social Security Administration, admitted that there was no possible way that his agency would be able to correct a legitimate error within the 90 days allowed by the social security no match law.

So what are employers to do with the smattering of laws and regulations that make them scared of their own shadows?  Well, for once, the government has recognized this dilemma and decided the no-match regulation was unfair to employers (not to mention the employees who would have been wrongfully terminated due to simple errors in an imperfect system).  It’s good thing Julie Myers Wood is not in charge of US Immigration and Customs Enforcement any longer.