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DHS Final Rule

on No-Match Letters


New "Safe Harbor"

for Employers


    This past week the Department of Homeland Security issued its final rule on "No Match" letters.  The rule imposes on employers a broader definition of "constructive knowledge,"  and adopts a "safe harbor" protocol to allow employers to buy some protection from civil and criminal penalties.

    You are on constructive notice of an unauthorized worker if (in addition to other facts):  a) the employee requests sponsorship for permanent residence,  b) you receive a "no-match" letter from the Social Security Administration,  or c) you receive a DHS letter - typically after an I-9 audit - finding that the worker's employment authorization documents do not match DHS records. 

     Here is the five-step process - some of which you already should know about - for employer compliance outlined in the new rule:

     1.  Employee Record Check - If you get a no-match letter, you have 30 days to verify that the mismatch was not the result of a record-keeping error on your part.

     2.  Employee Confirmation - If so, you promptly ask the employee to confirm that the name and SSN in the employee's records are accurate. 

     3.  Employee Corrections - If the employee claims that the name and SSN are accurate, you ask the employee to resolve the issue with the SSA or the DHS within 90 days.  Although you have no obligation to assist the employee in how to go about doing this, you must advise the employee that a re-verification of all I-9 documents will be required if the problem is not resolve within the 90 days.  There will be instructions on the no-match letter on how to wrap up this file issue if the problem is resolved.

     4.  New Employee Verification - But if the problem remains after 90 days, you must follow up on the re-verification of the I-9 documents within THREE days after the expiration of the 90 day period.  Of course you must reject any document reference in the no-match letter, and any document containing or referring to the disputed SSN.  You will need to include a photograph of the employee for the new I-9 file, so require it of the employee.

     5.  Employee Termination - You must dismiss any employee where the discrepancy in the no-match letter cannot be defined or corrected, and where the employee fails to satisfy the requirements for re-verification of the new I-9 documents.