ICE Proposes Rule on "Safe-Harbor" Procedures for Employers Who Receive SSA/DHS No-Match Letter, etc.
The Bureau of Immigration and Customs Enforcement (ICE) has issued a proposed rule that would amend 8 CFR 274a.1(l) regarding the employment of aliens, to among other things, describe the legal obligations and safe harbor opportunities available in situations where an employer receives a "no-match letter" from the Social Security Administration (SSA) or the Department of Homeland Security (DHS) stating that the combination of the name and social security number (SSN) submitted to the SSA for an employee does not match agency records
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ICE adds that the proposed rule would not mandate any new burdens on the employer and would not impose any new or additional costs on the employer.
Highlights of the proposed rule include the following provisions:
Two Additional Examples of Information That Could Alert Employer
ICE states that the proposed rule would amend the definition of "knowing" in 8 CFR 274a.1(I)(1) in the portion relating to constructive knowledge by adding two more examples to the existing examples of information available to an employer indicating that an employee could be an alien who is not authorized to work in the U.S.
The proposed examples would be located at 8 CFR 274a.1(l)(1)(iii) (B) and (C) and would concern names and SSNs that do not match SSA records, as well as discrepancies with employment authorization documents.
Constructive Knowledge Would Depend on "Totality of Relevant Circumstances"
According to ICE, the proposed rule would also amend 8 CFR 274a.1(I)(1) to state that whether DHS would actually find that an employer had constructive knowledge that an employee was an unauthorized alien in a situation described in 8 CFR 274a.1(l) would depend on the "totality of relevant circumstances" present in the particular case.
Highlights of Safe-Harbor Procedures that Employers Could Follow
ICE states that the proposed regulation, which would add a new 8 CFR 274a.1(l)(2), describes more specifically the "safe-harbor" procedures that an employer might take after receiving a no-match letter. By taking these steps in a timely fashion an employer would avoid the risk that DHS may find, based on the totality of circumstances present in the particular case, that the employer had constructive knowledge that the employee was not authorized to work in the U.S.
Examples of steps that a reasonable employer could take include, among other things, investigating whether a "no-match letter" resulted from typographical error, transcribing, or similar clerical error in the employee's records or in its communication to the SSA or DHS.
According to ICE, the proposed regulation would not preclude DHS from finding that an employer had actual knowledge that an employee was an unauthorized alien. Moreover, an employer with actual knowledge that one of its employees is an unauthorized alien could not avoid liability by following the procedures described in the proposed regulation. The burden of proving actual knowledge would, however, be on the government.
(Under this proposed rule, current 8 CFR 274a.1(I)(2) would also be renumbered as 8 CFR 274a.1(I)(3).)
-written comments must be submitted by August 14, 2006
CBP Contact - Charles Wood (202) 514-2895
CBP Proposed Rule (ICE 2377-06, D/N ICEB-2006-0004, FR Pub 06/14/06) available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-9303.pdf