On August 14, 2007, the U.S. Immigration and Customs Enforcement (ICE) published its Final Rule requiring employers to take specific steps within prescribed times (30, 90, and 93 days of the receipt of the letter) or find that the ICE can use these no-match letters as evidence of "constructive knowledge" that the employer knowingly hired or continued to employ unauthorized workers.  For employers who comply with the requirements, the rule provides a Safe-Harbor, precluding the use by the ICE of the no-match letter, even if the employee is later found to lack work authorization.  The Safe-Harbor does not preclude the DHS from finding that an employer had actual knowledge that an employee was not authorized to work, or that other evidence constitutes constructive knowledge.  The rule goes into effect September 14, 2007.

The Final Rule adds two new examples under "constructive knowledge" to the definition of "knowing" that an employee is unauthorized to work:  receipt of a mismatch letter from the SSA, or receipt of a letter from the DHS advising of a documentation problem.  The employer is then given procedures for handling the notice(s):

1. Within 30 days of receipt of the letter, the employer needs to check its records to see if the error is at its end, e.g. typographical, clerical, transcription.  If so, the employer must correct the error with the affected agency and verify that the "corrected" information now matches the agency records.  The employer must also maintain a record of the date, time and manner of verification.
    
2. If the error is not in the employer's records, the employer needs to promptly request that the employee confirm the information is correct.  
    
   a. If the employee advises the employer that the information is not correct, the employee needs to provide the correct information. 
    
   b. If the employee advises the employer that the information is correct, then the employee must be asked to follow up personally with the relevant agency.  This could require a personal visit to the agency to clear up the error.
    
3. The employer must advise the employee of the date that it received the "no-match" letter and that the individual has 90 days from that date to correct the information.  Once the employee corrects the information, the employer must correct the error with the affected agency and verify that the "corrected" information now matches the agency records. The employer must also maintain a record of the date, time and manner of verification with the corrected Form I-9.  The employer can use the same Form I-9, or prepare a new Form, but may not re-verify the documentation.
    
4. If the employee does not correct the information, or the employer is not able to complete verification of the corrected information within the 90 days, the employer and employee must fill out a new Form I-9.   No later than day 90, the employee must complete Part 1.  Then, no later than day 93, the employer needs to complete Part 2, but is limited by the new rule as to the documents it may accept from the employee for this purpose.  The employer may not accept any document that contains the unverified Social Security or DHS number.  Nor may the employer accept a receipt to replace the document as a List A, B, or C document.   Finally, the identity and work authorization (List A) or identity only (List B) document offered by the employee must contain a photograph.   The new Form I-9 should be kept with the prior Form and retained based on the employee's first date of employment.
    
5. If the employer cannot properly complete a new Form I-9 while complying with the above restrictions, the employer will need to either terminate employment or face the risk that the DHS may find the employer had constructive knowledge that the employee was an unauthorized worker.

For more information about no-match letters and other employment law issues, contact educational services at (414)988-8400.