Immigration Compliance —Fiorenza

IN A development of significance for graphic arts companies utilizing foreign talent, the U.S. Immigration and Customs Enforcement recently amended its regulations relating to the unlawful hiring or continued employment of unauthorized aliens.

Specifically, the amended regulation describes the legal obligations of an employer that receives either 1) a “no-match letter” from the Social Security Administration (SSA) or 2) a letter regarding employment verification forms from the Department of Homeland Security (DHS).

An employer “no-match letter” (also known as an “Employer Correction Request”) is a written notice from the SSA that the name and social security account number submitted to the SSA for an employee does not match the SSA’s records.

The DHS letter is a notice that the immigration status or employment-authorization documentation presented by the employee in completing Form I-9 was not assigned to the employee, according to DHS records. Since Form I-9 is retained by the employer—as opposed to being filed with DHS, and is only made available to DHS investigators upon request—an employer will likely only receive this type of notification following an audit of its I-9 records.

Obligations Upon Receipt of No-Match Letter

Under the new regulation, when an employer receives a no-match letter from the SSA, it must check its records to determine whether it made some clerical error that caused the mismatch. If so, the employer must correct the error and inform the SSA of the accurate information. The employer must also verify with the SSA that the employee’s name and social security number, as corrected, match SSA records.

The employer then must make and retain a record of the “manner, date and time of such verification,” and then store it along with the employee’s Form I-9. The employer must complete these steps within 30 days of receiving the no-match letter.

If the employer determines that the discrepancy is not due to its error, the employer must “promptly request” that the employee confirm that the name and social security number in the employer’s records are correct. If the worker confirms that the records are correct, the employer must “promptly request” that the employee resolve the discrepancy with the SSA.