AHCA Reports New Immigration Regulations Place Burden On Employers

VHCA (8/17/2007)

On Friday, August 10, the Department of Homeland Security (DHS) announced a regulation addressing the impact of the Social Security Number "no-match" letters that employers have received for many years.  Employers receive such letters when the Social Security Administration (SSA) is unable to match the name with the Social Security Number (SSN) provided for a specific employee on employment eligibility forms to SSA's records.  The regulation provides concrete steps that employers can take to protect themselves with what DHS terms to be a "safe-harbor" from liability for having unknowingly hired unauthorized workers.

An employer may be in violation of federal regulations if he or she has constructive knowledge that an employee is an unauthorized worker.  Note that the regulation has created an expansive definition of the term "constructive knowledge" as it relates to an individual's authorization to work in the U.S.  An employer is deemed to have constructive knowledge if a reasonable person would infer from the facts that the employee is unauthorized. Furthermore, constructive knowledge constituting a violation of federal law can be found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation; (2) the employer has learned from other individuals, media reports, or any other source of information available to the employer, that the alien is unauthorized to work in the U.S.; or (3) the employer acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into the employer's work force.

Many believe that many low and unskilled workers will simply move from one employer to the other as these SSN no-match letters are received and acted upon. Therefore, the pool of legally authorized workers in these essential jobs is limited without a viable guest worker program. However, earlier this year, Congress rejected numerous proposals for comprehensive immigration reform, including a revamped guest worker program. Even though the Administration is a staunch supporter of immigration reform, the timing of this new regulation does not take into account the economic and business realities that employers will face as well as the possible fines and penalties. For more information, please contact AHCA’s Ken Preede by phone at 202.898.2801 or by email at kpreede@ahca.org.