Immigration has been one of the hottest political topics this year. If the Department of Homeland Security gets its way, immigration enforcement will come closer to being in virtually every business and ag production and processing operation in South Dakota.
 Timothy Gebhart
The no-match regulations were proposed in June 2006 and were to take effect Sept. 14. They deal with whether an employer has taken reasonable steps to address three situations: an employee’s request that the employer sponsor the employee for a labor certification or visa petition, receipt of a no-match letter from Social Security and receipt of a notice from Homeland Security that employment authorization documents presented by the employer do not match the department’s records.
Up to four percent of the 250 million wage reports Social Security receives from employers each year result in so-called no matches. The regulations outline steps an employer must take to ensure a no-match letter is not used as evidence that an employer had constructive knowledge an employee was not authorized to work in the United States. At the same time, the regulations promise immunity from a constructive knowledge charge based on such notices if the employer follows the procedure outlined in the regulations.
In its commentary to the rules, Homeland Security said that if an employer does not resolve discrepancies within 93 days of receipt of a no-match letter, “the employer must choose between taking action to terminate the employee or facing the risk” that the department may find that the employer had such knowledge and violated federal law by continuing to employ the employee.
When it announced the regulations in August, Homeland Security also indicated increasing focus on the I-9 form employers must complete for every employee. The department promised regulations reducing the types of documents employers can rely upon in the I-9 process. It also planned to adopt regulations requiring federal contractors and vendors to use an electronic verification system, a move that would impact more than 200,000 companies.
The no-match regulations were challenged by a group of labor and trade councils, including the AFL-CIO. A hearing on the temporary injunction was scheduled for Oct. 1, but the judge has extended the temporary restraining order on the "no match" letters for 10 days. The judge will issue a final ruling by Oct. 10. Any final decision likely will be appealed.
Regardless of the ultimate outcome of the litigation, there is little doubt Homeland Security will press forward with increased worksite enforcement through the I-9 process and other measures. As a result, in addition to being aware of the possibility of updated regulations, employers should consider being proactive. This might include having a written policy detailing the I-9 process and record-keeping system, conducting a full-scale audit or periodic snapshot audits of existing I-9 forms to assess their compliance level, or training appropriate personnel to address and minimize potential issues.
The government handbook on I-9 completion and record-keeping requirements is available at www.uscis.gov/
files/nativedocuments/m-274.pdf.
Gebhart is an attorney at Davenport, Evans, Hurwitz & Smith LLP
357-1243,
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