Last week’s EmployNews detailed new Department of Homeland Security regulations regarding employers’ responsibilities to respond to No-Match letters from the Social Security Administration. Since publication of the new rules, employers have raised a number of questions regarding their implementation. Perhaps the most important unanswered question involves employees who are subject to a series of No-Match letters. For example, an employer follows the new DHS rules and requires an employee to produce information indicating that she is legally entitled to work in the U.S. The employee then produces an entirely new Social Security number that is the subject of a subsequent No-Match letter. If this process repeats itself, at what point is the employer deemed to have constructive knowledge that the worker is illegal? If each individual new Social Security number produced appears legitimate, does the employer have an obligation to independently verify it? Could such a verification attempt form the basis of a discrimination complaint?
Also, what are employers’ responsibilities regarding old No-Match letters? Do the new regulations apply only to letters received after the rules become effective in September, or will they retroactively apply to old No-Match letters that the employer ignored? If so, how far back do employers need to search to avoid constructive knowledge of an immigration violation? As these and other questions over the new verification procedures are raised, hopefully, DHS will clarify employers’ exact obligations to respond to possible knowledge of violations.