August 13th, 2007 – The Immigration and Customs Enforcement ("ICE") Agency of the Department of Homeland Security ("DHS") announced last Friday that its newest regulation – 8 CFR 247a – has been finalized and signed by Secretary Michael Chertoff.  The regulation will be published in the Federal Register this week to take effect 30 days from publication.  This long-anticipated but highly-controversial regulation will have wide-ranging impact on all U.S. employers in the context of workplace employment authorization verification.  Despite its intention to provide a "safe harbor" for employers who follow its provisions, its enforcement can still leave many employers in a catch-22 position.

8 CFR 274a is entitled "Control of Employment of Aliens."  It re-defines U.S. employers’ "constructive knowledge" in the context of alien employment authorization verification.  It requires employers to act and resolve discrepancies between their employee records and governmental records within 30 to 93 days of receipt of official notification from: (1) the Social Security Administration ("SSA") of an employer correction request (more commonly known as a No-Match Letter); or (2) DHS in response to an employer’s I-9 completion, verification and/or audit.  In comparison to the same rule as proposed last year, deadlines for employer compliance have been extended slightly, but the definition and scope of an employer’s "constructive knowledge" has also been widened.

Under the new regulation, once an employer receives a No-Match Letter from SSA, it has 30 days to internally verify and correct any typographical, transcription, or similar errors; inform the SSA if such errors exist; then verify with SSA that the employee name and SSN assigned, as corrected, now match SSA’s records.  If the employer cannot locate the source of the no-match error internally, it must confront the employee in question to first ensure that no typographical or clerical error exists, and then ask the affected employee to resolve the discrepancy with the SSA individually and immediately.  The employer must inform the affected employee of the date of receipt of the No-Match Letter, and advise the employee that the discrepancy must be resolved within 90 days of that receipt date.  If the employer is unable to verify the record correction with SSA within 90 days, it then has only 3 more days to re-verify the I-9 with the employee based on documents un-related to those with the No-Match SSN.

If an employer takes the actions described above within the timeline prescribed, DHS cannot impute "constructive knowledge" of unauthorized alien employment.  The regulation will therefore provide the employer with a "safe harbor" from any subsequent DHS audits, fines, or sanctions.

But employers must also balance the intricacies of stricter employment verification procedures with possible discrimination and wrongful termination lawsuits from employees.  Furthermore, it is not clear whether SSA is ready for the sudden and additional administrative burden this DHS regulation will bring, or whether 90-days will be enough to clarify all SSN discrepancies.  Further, it is unclear how strict adherence to this new regulation will impact states such as California, which expected the relief of a temporary guest worker program and overall immigration reform to be implemented hand-in-hand with these tougher enforcement rules.