On June 14, 2006, the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security (DHS) issued a notice of proposed rulemaking on “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” Under current law, it is illegal for an employer to knowingly hire or to continue to employ unauthorized workers.
Letters from federal agencies to employers indicating problems with an employee’s Social Security number or other number related to the employee raise questions on what an employer receiving a “no-match” letter must do under immigration laws in response to the letter. An employer who fails to adequately respond to a “no-match” letter on an employee may be considered to have “constructive knowledge” that the employee is not legally authorized to work and may be liable for violating immigration laws if the employee continues to be employed and turns out to be illegal.
DHS’s proposed rule would provide a process of actions that an employer could perform in response to a “no-match” letter on an employee, which would be considered to be adequate if employer performed the actions within the time frames identified in the rule.
The proposed rule signals a major shift in the DHS policy to establish a “safe harbor” rule, that identifies a particular procedure that employers may follow in response to “no-match” notifications that will protect employers from liability under claims of employing an illegal worker. The proposed rule, however, specifically states that an employer’s action to follow the “safe-harbor” guidelines does not protect the employer from claims of violating the anti-discrimination provisions of immigration laws.
Previously, Farm Bureau outlined several options for employers in responding to these letters based on the best available information at the time (see the June issue of Country Focus). However, it is unclear at this point whether DHS will issue a final “safe harbor” rule or whether any significant changes will be made to the proposed rule in any final rule that may be published.
DHS maintains in the proposed rule that employers must take “reasonable steps” in response to “no-match” letters received on employees, and recognizes there may be reasonable steps employers may take other than those outlined in the proposed rule to avoid liability for “knowing employment” of illegal employees. However, employers will need to decide the method for responding to mismatch letters that they believe will be considered to be “reasonable” by DHS and will avoid DHS claims of violation of immigration laws for “knowing” employment of illegal workers.
We stand ready to assist growers in providing the names of labor law attorneys if you wish to seek legal advice.
Options for Employers
Review and understand the proposed rule. Follow this link to the rule as printed in the Federal Register. In addtion, please read the comments from American Farm Bureau on the proposed rule.
Employers will now have to make the decision to either follow the rules as proposed, or take an alternative set of “reasonable steps” in the hopes that DHS will consider them reasonable. Whichever route is taken, employers must be careful not to break any anti-discrimination laws and document all actions they take regarding a no-match letter.
If you have received no-match letters and wish to receive legal advice, we can offer the names of attorneys specializing in labor law.
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