January 1, 2008

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ICE Heats Up Enforcement

Understanding Regulation on No-Match Letters

Roger Tsai

January 1, 2008

It’s hard to miss the news on the immigration raids that are being conducted around the country. From the Swift meat packing plant in Hyrum to McDonald’s in Reno, federal agents from Immigration and Customs Enforcement (ICE) have been investigating and criminally charging employers who knowingly hire undocumented workers. ICE has attempted in the last two years to reverse the tolerance of undocumented workers. In 2007 alone, ICE has made 863 criminal arrests and 4,077 administrative arrests of both undocumented workers and the employers who are complicit in hiring them. Last April, ICE conducted one of its largest raids on a pallet supplier, where 1,200 workers, including several based in Utah, were detained. Through an informant who posed as an undocumented Portuguese worker, federal agents were able to prove that seven managers helped undocumented workers obtain fake Social Security cards and doctored tax documents. Three of the managers have pled guilty to harboring of illegal immigrants and could face up to five years imprisonment. It is still unclear whether the pallet company itself could face corporate liability. While it is relatively simple to implicate individual hiring managers, proving knowledge of corporate officers could prove more elusive. A factor that indicates the pallet company knowingly turned a blind eye to undocumented workers are 13 letters sent from the Social Security Administration (SSA) informing them that 53 percent of their 5,800 workers had Social Security numbers that were invalid. Federal prosecutors are increasingly using the response, or lack of response, by employers to these letters to show a lack of good faith compliance with immigration laws. For the last decade, employers have been given mixed messages about how they should respond to no-match letters. In August, ICE issued a final regulation outlining the actions that an employer must take in order to avoid immigration related liability. Taking Action Under the Immigration Reform and Control Act of 1986 (IRCA), ICE may pursue civil or criminal penalties against employers who knowingly hire or continue to employ undocumented workers. Knowledge may be either actual or constructive. Constructive knowledge is defined as knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Failure to take “reasonable steps” after the receiving a Social Security no-match letter has been added to a list of instances where constructive knowledge may be found depending on the totality of circumstances. If reasonable steps are taken by the employer, the receipt of the no-match letter will not be used as evidence of constructive knowledge. Under the new final regulations, once a no-match letter is received by the employer, the employer must check its records to determine whether the discrepancy was caused by a clerical error, correct the error with the SSA, and verify that the corrected name and Social Security number now match. If the discrepancy cannot be resolved with the SSA or ICE within 90 days of receipt, the employer must complete a new I-9 employment verification form within 93 days of receipt. When the employer inspects identity and employment authorization documents, documents with a Social Security number such as a Social Security card may not be accepted. Any new I-9 form must be retained with the employee’s original I-9 form. If the employee is unable to complete a new I-9 or provide additional documents that prove employment authorization and identity, the employer must terminate the employee. Currently, ICE does not have Congressional authorization to use the receipt of no-match letters to target employers for investigations, but the agency is actively requesting the ability to initiate investigations based on the number of Social Security no-match letters received. Once an ICE investigation begins, federal agents may access SSA records and often focus on how an employer responds to receiving no-match letters. In light of the new final regulation, employers must be aware of their obligations and take appropriate actions after receiving no-match letters. This final regulation was slated to go into effect on Sept. 15, 2007, but a preliminary injunction by a U.S. District Court in California has temporarily delayed the issuance of the no-match letters and the implementation of the regulation. Roger Tsai is an immigration attorney with the Salt Lake City-based firm of Parsons Behle & Latimer. He specializes in employment based immigration and worksite enforcement and can be reached at rtsai@parsonsbehle.com.
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