The final rule expands the definition of "constructive knowledge" to include an employer's failure to take reasonable steps to address three situations:  (1) an employee's request for the employer's sponsorship of the employee for a labor certification or visa petition; (2) receipt of a no-match letter from the SSA; and (3) receipt of a notice from DHS (usually after an I-9 audit) that the employee's employment authorization documents presented in connection with completion of the I-9 form do not match DHS records.

The final rule, which is effective September 14, 2007, states that if the SSN, immigration status, or employment authorization document discrepancy cannot be resolved within a set period of time, employers must terminate the individual's employment.   The regulation recommends that employers take the following steps within a maximum of ninety-three (93) days after receipt of an SSA or DHS notification:

.         STEP 1:  Check the employer's own records.  Within thirty (30) days after receiving written notice from SSA or DHS, the employer should check its own records to determine whether the SSA or DHS discrepancy is due to a clerical error.  If so, the employer should correct its records, notify and verify the correction with the relevant agencies and make record of the manner, date and time of verification.

.         STEP 2:  Request confirmation from the employee.  If the employer's own check of its records does not resolve the problem, the employer should then ask the employee to confirm that the employer's records are correct.  If the employer's records are incorrect according to the employee, the employer must make any necessary corrections and verify them with the relevant agencies.  If the employee confirms that the employer's records, the employer must request that the employee resolve the discrepancy with the relevant agency.  There steps should take place within ninety (90) days of the date the employer received the DHS or SSA notification.

.         STEP 3:  Repeat the I-9 process.  If the discrepancy cannot be resolved with ninety (90) days of using Step 1 and 2, ICE recommends that the employer and employee complete a new Form I-9 employment eligibility verification within an additional three (3) days.  The repeated I-9 process is to be conducted using the standard procedures for new hires, with some limitations on the types of identify and work authorization documents that the employer may accept.  If the repeated I-9 process is unsuccessful and the employee's identify and work authorization still cannot be verified, the employer must terminate the worker's employment or risk a finding that it knowingly hired or continued to employ an individual who is not authorized to work in the United States, in violation of the Immigration Reform and Control Act ("IRCA").

Green Card Sponsorship

There is no "safe harbor" protocol where an employee requests employer sponsorship for a labor certification or immigrant visa petition, and the employee turns out to be unauthorized.  Where the request is made by an employee who admits to the employer that he or she is currently unauthorized to work in the United States, or where the request is inconsistent with information provided by the employee in connection with the I-9 process, the employer may be charged with actual or constructive knowledge of unauthorized stats if the employer permits the employee to continue working for the employer.

How This Affects You

The safe harbor provision gives employers ninety-three (93) days to reconcile information when there is a discrepancy, as described above in Steps 1 through 3, and protects an employer from a constructive knowledge charge where the employer follows these procedures.  While acknowledging that other actions taken by employers may constitute "reasonable steps" in the context of "total facts and circumstances" test, employers who fail to follow the protocol may not benefit from the "safe harbor" provisions in the event of a civil or criminal investigation.