U.S. Immigration and Customs Enforcement (ICE) is implementing regulations that will impact employers who conscientiously maintain and reverify I-9 Forms. For a number of years the Social Security Administration (SSA) has sent out "no-match" letters to employers when the W-2 Forms submitted by the employer contains employees' names and Social Security account numbers (SSNs) that do not match SSA records. We have advised employers to alert affected workers to the "no-match" letters so they may correct any discrepancy with SSA. We have relied on the advice of the Office of Special Counsel for Immigration-Related Unfair Employment Practices, and historically advised our clients to refrain from viewing "no match" letters as a signal to selectively reverify the I-9 Forms of employees covered by the SSA notifications.
This is about to change. The ICE rule creates a "safe harbor" provision with specific procedures to be followed when an employer receives an SSA no-match letter. If the employer does not resolve the "no match" letter within 93 days, by reverifying the employee's identity and work authorization, the employer will be deemed to have "constructive knowledge" that the employee is not work authorized. In the new "ICE" Age, this will expose employers to criminal and civil penalties. The rule is scheduled to go into effect in 30 days after publication of the final rule in the Federal Register. We will continue to provide updates and guidance.
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