Worksite Enforcement – Stepped-up Employer Sanctions

September 2007

The cornerstone of the new requirements is the announced crackdown on employers who “knowingly” hire undocumented workers. This is the so-called “ no-match” regulation. Under current law, an employer must ask for documents that confirm an individual’s identity and ability to work when employees fill out the required Form I-9. These documents include a social security card. Each year employers send the Social Security Administration (SSA) earnings reports (W-2 Forms) in which the employee name and the social security number do not match. If an employer has more than 10 employees with inaccurate personal identity information, the SSA will send him/her a “no-match” letter stating that the social security information submitted by the employer for his/her employees does not match the records in the SSA database.

In addition, DHS’ U.S. Immigration and Customs Enforcement will send a similar letter to an employer if an audit indicates that an immigration status document or employment authorization document presented or referenced by the employer in the Form I-9 cannot be confirmed.The new regulations spell-out what an employer can do to avoid “knowingly” hiring or continuing to employ the individual and avoid liability for employer sanctions.

If an employer receives such a letter from either SSA or DHS, he/she must take the following actions or risk penalties.The steps that will insulate an employer from liability include:

• Within 30 days of receiving the letter, the employer must check the information against his/her own records, make any corrections of errors and verify them with SSA or DHS.

• If the employer does not fi nd errors in its records, the employer must inform the worker of the discrepancy within 30 days.

•Theworker then has until 90 days after the employer received the letter to contact the appropriate agency and correct the error.

• If the employee does not resolve the issue during that period, he/she has three days to fi ll out new paperwork and provide all necessary documentation.

• If the worker cannot provide the documentation, the employer must fire the worker immediately or be liable to sanctions and fines for “knowingly” employing an undocumented alien and failing to act.

Under the new regulations, fines imposed on employers who knowingly hire illegal immigrants will be raised 25%. Current fines are $2,200 for the first off ense and up to $10,000 for repeat off enses.The 25% increase is the maximum allowed under current law.

The Administration will be proposing additional regulations to reduce the 29 categories of documents that employers may accept to confi rm the identity and work eligibility of their employees. These are expected in the near future.The purpose is to eliminate those documents that are most susceptible to fraudulent activities.

 

 

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