Through increased fines and a proposed regulation defending its "no-match letter" program, the federal government continues to enforce the prohibition against illegal employment.  Earlier this year, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) increased civil fines for employers that violate immigration laws.  The increased penalties are the result of an "inflation adjustment," the first since 1999.  These regulations target employers that knowingly employ unauthorized aliens or violate specified acts pertaining to the employment eligibility verification process (Form I-9).

Under the regulations, the minimum civil penalty for knowingly employing an unauthorized alien increased from $275 to $375.  The maximum civil penalty for first-time violations by employers rose from $2,200 to $3,200.  In addition, the maximum amount that employers can be penalized for multiple violations increased from $11,000 to $16,000.  These penalties are determined on a per unauthorized worker basis, meaning that a fine will be imposed for each unauthorized worker that an employer knowingly employs or continues to employ.  Moreover, employers can also face criminal penalties, which may result in additional fines and/or imprisonment.

These tougher penalties are consistent with the government’s recent enforcement efforts against employers that knowingly hire unauthorized aliens.  In addition, the DHS is continuing to defend its proposed "no-match letter safe harbor" program.  This program further defines "constructive knowledge" and provides guidelines for how employers should respond to "no-match" letters in order to avoid being found to have "constructive knowledge."  "No-match" letters are letters which are sent to employers when information submitted on behalf of an employee does not match the information of the Social Security Administration (SSA).  In August 2007, the ACLU, the AFL-CIO, and other labor and "immigrant rights" groups challenged the "no-match letter safe harbor" program claiming that it violated workers’ rights, imposed burdensome obligations on employers, and caused discrimination against workers perceived as immigrants.  In October 2007, a U.S. District Court for the Northern District of California issued a preliminary injunction preventing the "no-match letter" program from going into effect.

Under the originally proposed "no-match letter" program, employers that received a "no-match" letter had 30 days to verify that the mismatch was not the result of a record-keeping error on the employer’s part before approaching the employee.  If the discrepancy was not resolved, the employee was asked to resolve the issue with the SSA.  If the mismatch could not be resolved within 90 days, a new Form I-9 was to be completed by the employee within 3 days.  The new Form I-9 was to be completed using identification documents other than those that initially created the mismatch.  Employers that were unable to confirm authorized employment using these procedures risked liability for knowingly continuing to employ unauthorized persons.

In an attempt to dissolve the preliminary injunction, the federal government issued a supplemental proposed rule which recently underwent a 30-day public-comment period.  While the supplemental proposed rule was issued in response to the preliminary injunction, it does not change the substance of the original "no-match letter" program, but rather (1) provides clarification of DHS’s policy on "no-match" letters, (2) addresses the regulation’s anti-discrimination language, and (3) presents an initial regulatory flexibility analysis.  In essence, the supplemental proposed rule gives further justification and clarification to the originally proposed "no-match letter" program.  According to the DHS, the supplemental proposed rule provides a more detailed analysis as to how the DHS developed the "no-match letter" program.  The DHS also characterizes the "no-match letter safe harbor" program as a way to help responsible employers comply with immigration laws.

Because the public-comment period on the supplement proposed rule is now closed, the DHS must now review the comments, publish a final rule, and then go back to court to attempt to dissolve the injunction.  Until then, the rule remains at a standstill.  As a result, employers and employees must continue to wait and see what comes of the federal government’s "no-match letter safe harbor" program.

Click here for public comments on the supplemental proposed rule.