On June 14, 2006, the U.S. Department of Homeland Security ("DHS"), Bureau of Immigration and Customs Enforcement (“ICE") announced the proposed implementation of amendments to existing regulations aimed at strengthening the enforcement efforts which are designed to prevent employers from hiring immigrants who are not properly authorized to work in the U.S.
Both the House and Senate have proposed bills that contain changes in worksite enforcement. The proposed bills seek modifications to the Immigration Reform and Control Act of 1986 ("IRCA"), which include hefty fines and criminal penalties for employers who knowingly hire unauthorized workers. DHS Secretary, Michael Chertoff, recently stated that "anything we can do using our own existing authority, we ought to do . . . what we can't do, we should work with Congress to accomplish."
The proposed rule will target employers who have received notices from the Social Security Administration (“SSA") specifically related to two scenarios. The first is when an employer receives notice from the SSA that an employee's social security information in their system does not match the information provided by the employee. The second scenario is when the employer receives written notice from the DHS that the immigration status or employment authorization documentation presented at the time of hire was not assigned to that specific employee, according to DHS records.
Now employers are required to use "due diligence" by taking certain clearly specified steps to investigate mismatched employees and follow the new “safe harbor" procedures or they may face penalties. The safe harbor procedures include attempting to resolve the mismatch issue and if it cannot be resolved within a certain period of time, verifying again the employee’s identity and employment authorization documents through a specified process.
Under the proposed new rule, employers that follow-up on mismatched employees will have protection against governmental liability. If they ignore the mismatch notices and the worker(s) turn out to be unauthorized, their failure to act may be considered "evidence that can be used against them," Chertoff said.
The new No-match regulation was due to go into effect on September 14th 2007. Many empoyers are gravely concerned about the impact that the new regulations may have on their workforce. However, a case was filed in Federal Court in California seeking to restrain the government from enforcing the new regulations. The case was spearheaded by the AFL-CIO (as one of the plaintiffs). An injunction was issued by the Court. Last week the injunction was revisited by the Court and it was extended.
For more information on Employment Verification procedures and training programs, contact our office at info@visaserve.com.
Mr. Nachman is a member of the State of
NJ Bar, the Court of International Trade, and the
US Court of Appeals. Mr. Nachman twice appeared on NJ News as
a recognized authority in the Business Immigration Law.
Mr. Nachman was born in NY and
is a resident of NJ. Following admission to
practice, he was employed for 3 years with one of NJ's largest law firms in the Corporate Law Department. He engaged in business
immigration law practice and and general corporate
compliance.
Mr. Nachman is published widely and he is an Adjunct
Professor at Farleigh Dickinson University where he teaches Immigration and Nationality
Law. Mr. Nachman moderates the NJ
Institute of Continuing Legal Education (“NJICLE”) program entitled
"The ABC's of Immigration Law." In addition to the foregoing, he has
presented CLE Programs for organizations such as
CELESQ, Sterling Educational Services and The U.S. Department of
Justice (“DOJ”), Employers’ Association of NJ (“EANJ”) and
the Society of Human Resource Management (“SHRM”).
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