Employment Laws Newest Offspring: Immigration Law

February 1, 2008

The rise of immigration disputes in the workplace is forcing many labor lawyers to meet immigration law challenges facing their corporate clients.

Our law firm recently has counselled employers about:

a) Losing key employees during Immigration and Custom Enforcement Agency (ICE) investigations;

b) Receiving “no match” letters from Social Security Administration; and 

c) Asking questions over work visas.

What are some of U.S. immigration law basics? Here’s a synopsis. 

Issue 1

What administrative paths are available for a person to work in the United States? Essentially, there are three permanent citizen-resident paths:

1) Sponsorship through an employer or U.S. business;

2) Sponsorship by a U.S. family member; and

3) Asylum or refugee status.

Any successful petition for U.S. residency normally will fall under one of these three categories.

1) Business sponsorship most often involves a labor certification. The first step is to convince the respective state and federal departments of labor that the employer has a job to fill and cannot find a U.S. worker to do that job. This is done by conducting a recruitment, through newspaper advertising, registering the job with state employment agencies, and defining the skills and wages required. Once the departments of labor approves the recruitment, it will certify that the position can be filled by a non-U.S. worker.

Next is an application to the U.S. Citizenship and Immigration Services (USCIS) that includes the labor certification as well as evidence that worker is qualified for the job. Once approved, the third step is an application to the USCIS (if the worker is currently legally in the United States) or the U.S. State Department (if not currently here). This final step involves a background check of the applicant worker. Once complete, the worker obtains his green card. All three steps usually take one to two years to complete.

2) Petitions involving family relationships are less bureaucratic. The relationships recognized by U.S. immigration law are spouse, parent, child and sibling. The law creates a pecking order based on the type of U.S. resident and the type of relative. Spouses, minor children and parents of U.S. citizens are at the top. There is no waiting period for processing these applications, and for green cards (permanent resident green card holder), the waiting period shortens to three years. At the bottom of the list are brothers and sisters of U.S. citizens. Those applications take as long as 13 years to process.

3) Asylum is the third route. An applicant must prove that he has a well-founded fear of persecution in his home country on account of race, religion, nationality, membership in a particular social group or political opinion. A nonfrivolous application for asylum will carry with it the ability to work legally in the United States, until the application is decided, which is often three or more years. A fourth path, an annual visa lottery, is as speculative as it sounds.

Issue 2

What’s all this fuss about new “no-match” rules and sanctions?

What are the no-match regulations? Promulgated by the Department of Homeland Security (DHS), the no-match regulation would have triggered the release of nearly 140,000 Social Security Administration (SSA) no-match letters—when the name and social security number do not match SSA records.

The controversial, challenged no-match rule describes the obligation of employers when they receive a no-match letter from SSA or a letter from DHS highlighting problems with employment authorization documents used in completing I-9 forms. Under the regulation, if employers followed the rule, they would be given safe harbor from prosecution for knowingly hiring or employing an illegal immigrant, even if it turns out that the worker did, in fact, lack the right to work here.

Under the court-challenged regulation, upon receipt of a letter, the rule would have required that the employer began an inquiry as follows:

1) Within 30 days of receipt, check employer records for clerical errors, and try to check the actual social security card to see how the name is printed.

2) If the problem is not resolved by examination of the employer’s records, ask the employee to resolve the issue directly with the SSA within 90 days of the employer’s receipt of the letter.

3) If the employee cannot resolve the issue within 90 days, reverify the employee’s authorization and identity (according to procedures set out in the new regulations). The entire process has to be completed with 93 days of the employer’s receipt of the letter.

Reverifying is basically completing a new I-9 form for the no-match employee. The employee may not use a document containing the disputed SSN,

alien number or a receipt for a replacement of such a document. Only documents with a photograph can be used to establish identity, under that regulation.

What if an employer could not reverify? If the discrepancy was not resolved, the employer then would have to terminate the employee or risk that DHS would find constructive knowledge of lack of employment authorization. Employers also would have to terminate a worker if the worker states he is not legally present in the United States.

Sanctions or penalties built into the no-match would be severe if enforcement is ever allowed by the courts. If an employer retains employees without following the safe-harbor procedures, the government could use the SSA no-match letter (or its DHS equivalent) as evidence of the employer’s knowledge that it had employed an unauthorized alien. Ignoring no-match communications could expose an employer to a multitude of penalties, civil and criminal. These penalties could be severe, especially in the case of repeat violations, with fines reaching as high as $10,000 per unauthorized employee, and/or a sentence of up to six months in prison. 

Is the no-match rule in effect as law yet? No, because on October 10, 2007, U.S. District Court Judge Charles R. Breyer placed a temporary injunction blocking any enforcement of the no-match rule. A trial will be held to determine whether the temporary injunction should be made permanent. Technically, the federal court’s temporary injunction prevents any implementation—until the court’s trial ruling —of the DHS no-match rule punishing employers if they do not take action after receiving SSA no-match letters on any of their employees.

However, this is a good time for your legal counsel to review your I-9 forms to make sure you’re using the most current versions (both pages need to be in your I-9 files for each employee), along with reviewing your procedures and responses to no-match letters. MF

Technologies: Management


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