I 9 Compliance Handout

1
Avoiding Immigration Pitfalls:
I-9 Compliance
March 13, 2008
Presented by Ann Massey Badmus
Our Agenda
How to Complete the NEW I-9 Form
How to Correct the Most Common I-9 Mistakes
How to Conduct an Internal I-9 Audit
How to Respond to ICE Raids and Audits
Question and Answer

2
I-9 General Rules
Hire only those persons authorized to work in
the United States
Ask ALL new employees to show documents
that establish both identity and work
authorization
Complete form I-9 for every new employee -
regardless of nationality
Look at the Facts
Not the Faces
Common Mistakes in Hiring
Unequal treatment because of citizenship or
immigration status
Unequal treatment because of nationality, which
includes place of birth, appearance, accent and
language
Asking for specific documents from employee, such
as “Green Card”
Verifying some people’s documents and not others
Having a citizen-only hiring policy

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Employment Verification
I-9 Form
Must begin verification on first day of
employment
Must complete verification within three days
of employment
Section1 must be completed
by employee – in full
Common Mistake: Employee
leaves a section blank.
ICE has determined that
leaving a portion blank is
tantamount to the employee
refusing to attest to having
authorization to work.
Section 2 must be completed by
person viewing the
documents.
Common Mistakes:
• Listing too many documents
• Not listing the document title,
issuing authority, document #,
and expiration date
• Having Employee complete
Section 2
• Asking Employee for specific
documents
• Requiring Employee to show
“Green Card”
• Not listing date employment
began
• Not signing and dating
Section 2

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If the document listed in List C
has an expiration date, you
must re-verify when the
authorization document
expires.
Common Mistakes:
* Not re-verifying
* Re-verifying everyone,
regardless of whether their
documents expire
* Not completing Section 3
in full when re-verifying
Section 3 must be completed
by person viewing the
documents when re-
verifying
Common Mistakes:
* Person completing not
same person that viewed
documents
* Not listing name of
document, document
number and expiration
date of document
* Not signing Section 3
New Instructions for
Completing Form I-9

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Instructions for
Completing Form I-9,
continued
Revisions to I-9 Form
Only valid version – (Rev. 06/05/07) as of
December 26, 2007
I-9 Form Sections 1, 2, 3 remain the same
Lists of accepted documents to verify identity
and work eligibility has changed.
Key Changes to I-9 Form

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Five documents removed:
Certificate of U.S Citizenship (Form N-560 or N-562)
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)
One document added:
Unexpired Employment Authorization Document (I-765,
I-688, I-688A, I-688B, I-766)
List A
Instructions Section
Filling Out the Form I-9. Section 1. Employee.
Employees are not required to provide SS# in
Section 1(unless the employer participates in
E-Verify).
Photocopying and Retaining the Form I-9.
Includes information about Electronically
signing and retaining I-9 Form.
List of Acceptable Documents
List A: Document that
establishes both identity
and authorization to
work
List B & C: Must use both
* List B establishes
Identify
* List C establishes
authorization to work

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Examples of documents
acceptable for List A
Examples of
documents
acceptable for
List A
Examples of
documents
acceptable for
List A

8
Examples of
documents
acceptable
for List A
Examples of
documents
acceptable for
List B
Examples of
documents
acceptable for
List C

9
Examples of
documents
acceptable for
List C
Examples
of documents
acceptable
for List C
Examples
of documents
acceptable
for List C

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I-9 Retention
All current employees (unless exempt) must
have I-9 forms on file.
Retention date is determined at the time an
employee is terminated:
3 years after the date of hire or 1 year after the
date the employee’s employment is terminated,
whichever is later.
E-Verify
Web-based Basic Pilot Employment
Verification Program
USCIS and Social Security Administration
Voluntary participation
I-9 Internal Audit
Should be conducted annually
Should be conducted by one not involved in
completing Company’s I-9s
May audit all Company I-9s or a random
sampling
Should ensure that all employees on payroll
have an I-9

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Correcting Errors Found During an
In-House I-9 Audit
New I-9 form should not be substituted for
incorrect, old I-9
I-9 may either be corrected, showing date of
correction, or
New amended I-9 completed and stapled to
old incorrect I-9
How to Respond to an Audit
Don’t waive your right to a three-day notice of
the audit.
Do not allow Agents to take original documents
off-site.
Separate I-9s from personnel files.
Call an experienced immigration attorney
immediately upon receipt of an audit notice and
do not allow Agents to talk with employees
before calling an attorney.
New Developments in Enforcement
“In fiscal year 2007, ICE made more than 4,900
arrests in connection with worksite enforcement
investigations, including 863 involving criminal
violations. That represents a 45-fold increase in
criminal worksite arrests compared to fiscal year
2001. In addition, ICE obtained more than $31
million in criminal fines, restitution and civil
judgments in fiscal year 2007 as a result of worksite
related enforcement actions.”
ICE News Release 2-8-08

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Texas Man Sentenced to Six Months for
Harboring Illegal Aliens
“ICE aggressively targets employers who use
illegal alien labor as a business model. We
will continue to investigate and bring criminal
action against employers who egregiously
violate the nation’s immigration laws.”
ICE Releases Final Arrest Numbers for Utah
Workforce Enforcement Operation
* ICE arrested a total of 57 illegal aliens during
operation.
* U.S. Dept. of Labor was on hand to ensure
that those arrested were paid for work they
had already performed.
Company and H.R. Director Indicted
* Company and its human resource director charged
with harboring illegal aliens and encouraging or
inducing workers to stay in U.S. illegally.
* “These indictments show ICE’s commitment to fully
investigating companies and their hiring managers
who attempt to disregard our laws.”
* “Employers who ignore their responsibilities and the
law will be brought to justice”

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ICE executes Federal Search Warrant in
Van Nuys, California
ICE agents executed a federal search
warrant …at a Los Angeles-area computer
printer cartridge manufacturing plant,
arresting eight current and former company
workers on criminal charges and another 130
employees on administrative immigration
violations.
How To Respond to an ICE Raid and
Audit
Ask to see the documents authorizing the agents to
search the premises and employees
Make a copy of the warrant, if one exists
If no warrant, ICE agents will request permission to
visit and interview employees.
Ask about the purpose and scope of the inspection.
Contact your immigration attorney immediately!
Best Practices for I-9 Compliance
Implement a robust compliance program
Prepare for government audits and raids
Develop a plan
Communicate the plan
Train key personnel on the plan
Conduct Internal Audits and Third Party
Audits

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Best Practices for I-9 Compliance
Protect privileged materials including
personnel records
Implement policies and procedures to protect
the company and employees
Consult and retain counsel to evaluate your
compliance plan and advise on specific
courses of action
Question and Answer
Session
"Immigration law is a mystery and a
mastery of obfuscation, and the lawyers
who can figure it out are worth their
weight in gold."
- USCIS spokeswoman Karen Kraushaar.

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Legal Notice
Facts of individual situations differ
The information provided here is general in
nature and should not be relied upon for your
specific case
Consult with an experienced immigration
attorney with regard to specific situations you
encounter
Thank You!
Badmus Immigration Law Firm
12700 Park Central Drive
Suite 1910
Dallas, Texas 75251
469-916-7900 Telephone
469-916-7901 Facsimile
www.badmuslaw.com
immigration@badmuslaw.com

WORKSITE COMPLIANCE
RULES FOR EMPLOYERS
©Badmus Immigration Law Firm
12700 Park Central Drive, Suite 1910
Dallas, Texas 75251
Telephone 469-916-7900 Fax 469-916-7901
immigration@badmuslaw.com
www.badmuslaw.com

Chapter One
IMMIGRATION REFORM AND CONTROL ACT
(IRCA) RULES
To curtail the flow of illegal immigration into the United States, Congress
enacted the Immigration Reform and Control Act of 1986, commonly referred to
IRCA. IRCA sets forth two-pronged rules that require Employers to verify the
employment eligibility of employees hired (verification rules) and prohibits
Employers from discriminating against foreign-born employees (antidiscrimination
rules). These rules are federal law and must be followed regardless of the state in
which the Employer is located. Here is a brief overview of these rules with tips you
can use at the end of this chapter.
What Employers and Employees are covered by IRCA?
All Employers must verify the employment authorization of its employees to
work in the United States and are subject to penalties for non-compliance.
The provisions of IRCA are fairly broad and cover anyone
who employees another “for wages or other remuneration.”
Therefore, anyone placed on payroll clearly falls under the
regulations set forth in IRCA. The term “. . . or other
remuneration” is also quite broad and includes salaries,
wages, commissions or piece work activity.
Are there any exemptions to the IRCA verification rules?
All prospective employees are covered by IRCA
verification rules except casual hires and independent
contractors. But Employers must be clear as to what these
terms mean and avoid the slippery slope of misclassifying
employees for the purpose of gaining an exemption.
A casual hire is limited to someone who
performs sporadic, irregular or intermittent domestic
employment. This exclusion is very narrow, applying to
baby-sitters or others who perform occasional services inside a private home. But
regularly scheduled maid service, child care, or yard service workers are not
considered casual hires and work eligibility verification may be required.
A true independent contractor is not covered by IRCA. Therefore, an
Employer is not required to verify the work authorization of an independent
contractor. But Employers must be careful not to misclassify their workers as
Antidiscrimination
rules only apply to
Employers with four or
more employees.
An employee hired
prior to November 7,
1986 is not subject to
verification rules if the
employee has been
employed since that
date continuously and
without termination of
employment.

independent contractors. To do so subjects the Employer to even more problems by
facing additional penalties from the Internal Revenue Service and the state taxing
authorities for failure to properly report and pay payroll taxes and to match Social
Security taxes for those workers.
The term “independent contractor” means someone who is truly independent,
typically as defined by the Internal Revenue Service (IRS) rules. According to the
IRS, true independent contractors have their own tools, determine what is to be done,
in what sequence the jobs they have are to be done, and they perform such work for
many different people. Therefore, to claim that an worker is an independent
contractor, an Employer must be able to demonstrate that it only controls the result
of the work done by the worker, but not the means and methods of accomplishing
the result.
Verification Rules
What are the employment eligibility verification requirements for
Employers?
First, Employers must not knowingly hire or continue to employ any person
who is not authorized to work in the United States. The first prohibited activity of an
Employer under IRCA is the hiring of any one who is not authorized to work in the
United States. The prohibition regarding illegal workers also extends to not only
hiring, but to recruiting and referring for a fee someone who is not authorized to
work in the United States. Therefore, most employment agencies that assume the
responsibility of verifying that temporary workers can be employed are also covered
by this prohibited activity.
An Employer may be considered to "know" of an employee's lack of work
authorization either by actual or constructive knowledge. Whether an Employer has
constructive knowledge that an employee is unauthorized depends upon the totality of
the circumstances. Some cases where the government has found an Employer to
have constructive knowledge include, but are not limited to, situations where the
Employer:
Fails to complete or improperly completes the required verification
paperwork.
Even if a person is a true independent contractor, if the Employer knows that
the independent contractor has no authorization to work in the United States, the
Employer is still liable for the criminal and civil penalties provided for under
IRCA. It is illegal to contract with someone whom the person knows is not
allowed to work in the United States.

Fails to take reasonable steps after receiving information indicating that an
alien may be unauthorized to work.
Receives written notice from the Department of Homeland Security that a
document is not legitimate or is assigned to another individual.
Receives written notice from the Social Security Administration that the
combination of name and social security number submitted for the
employee does not match SSA records. (We will examine Social
Security "no-match" letters in greater detail later in this guide).
The second requirement under the IRCA is the I-9 verification procedure.
Every Employer must verify the identity and employment eligibility of every new
employee whether the employee is a citizen or alien. Under IRCA, all Employers are
required to complete Form I-9 and examine the work
authorization documents specified on Form I-9. Then, the
Employer must attest that they have examined the
documents supplied by the employee giving them the right
to work in the United States, and that those documents
appeared on their face to be genuine and related to that
employee. Therefore, even if every person ever interviewed or employed by an
Employer has the right to work in the United States, the Employer can still face
substantial penalties for failing to complete the I-9 form properly.
What are the key points to remember for completing the I-9 form?
First and foremost, Employers must examine the completed Form I-9 and
attest under penalty of perjury that the verification documents provided by the
employee appear genuine and relate to the individual applicant. Form I-9 contains a
set of directions for completing the form which must be followed. There is also a
published manual In particular, the Employer should remember to:
Instruct the employee to read Form I-9 and complete Part I. The employee
should be asked to comply with the provision that asks them to supply
documentation demonstrating that the employee is authorized to work in the
United States
Sign the Form I-9 under penalty of perjury, after the employee has completed
Section 1 of Form I-9.
Give the employee Form I-9 and direct him or her to the back of the Form I-9
which lists what documents are allowed to be supplied by the employee in
order for the employee to establish that they have a right to work in the United
States.
The I-9 verification
procedure must begin on
the day the employee
starts work and must be
completed within three
business days.

Examine the original verification documents. Do not simply accept the
employee’s word that they have valid work authorization documents without
examining those documents.
The categories of documents from which the employee may choose to produce
evidence that they have the right to work in the United States as indicated on the
back of the I-9 form are as follows:
“List A” documents establish both a worker’s identity and eligibility to
work. These documents are:
• U.S. Passport (unexpired or expired)
• Unexpired foreign passport that contains a temporary I-551 stamp
• Alien Registration Receipt Card or Permanent Resident Card (INS Form I-
551)
• Unexpired Employment Authorization Card that contains a photograph
(Form I-766, Form I-688, Form I-688A, Form I-688B)
• For non-immigrants authorized to work for a specific Employer: an
unexpired foreign passport with an Arrival-Departure Record, Form I-94,
bearing an unexpired endorsement of the individual's nonimmigrant status.
“List B” documents only establish identity, while “List C” documents
only establish eligibility to work. Therefore, if the employee does not
present you with a List A document, then s/he must present you with BOTH a
List B and a List C document.
“List B” documents establishing a worker’s identity are:
• Driver's license or ID card issued by a state or outlying possession of the
United States provided it contains a photograph or information such as name,
date of birth, sex, height, eye color, and address – watch out for REAL ID
• ID card issued by federal, state or local government agencies or entities
provided it contains a photograph or information such as name, date of birth,
Form I-9 contains a notice to the Employer that it is illegal for them to
fail to actually examine the appropriate documents establishing the right
of the employee to work in the United States. The Employer must further
certify that the Employer has not only examined the documents presented
by the employee but that those documents appear to be both genuine and
that they apply to the person being hired.

sex, height, eye color, and address
• School ID card with a photograph
• Voter's registration card
• U.S. Military card or draft record
• Military dependent's ID card
• U.S. Coast Guard Merchant Mariner Card
• Native American tribal document
• Driver's license issued by a Canadian government authority
For persons under age 18 who are unable to present a document listed
above:
• School record or report card
• Clinic, doctor, or hospital record
• Day-care or nursery school record
“List C” documents establishing a worker’s eligibility are:
• U.S. Social Security card issued by the Social Security Administration (other
than a card stating it is not valid for employment or valid only with INS work
authorization)
• Certification of Birth Abroad issued by the Department of State (Form FS-
545 or Form DS-1350)
• Original or certified copy of a birth certificate issued by a state, county,
municipal authority or outlying possession of the United States bearing an
official seal
• Native American tribal document
• U.S. Citizen ID Card (Form I-197)
• ID Card for use of Resident Citizen in the United States (Form I-179)
• Unexpired employment authorization document issued by the Department of
Homeland Security (other than those listed under List A), including (1) a Form
I-94 identifying the holder as an asylee (by stating "asylum", "asylee" or
appropriate provision of law), or (2) other documentation issued by DHS (or
the former Immigration and Naturalization Service (INS)) that identifies the
holder as an asylee, lawful permanent resident, refugee (except for the Form I-
94 identifying the holder as a refugee, which is considered a receipt only), or
other status authorized to work in the United States incident to status.

What if the employee has only a temporary work authorization, such as a
three-year H1B approval or a one-year employment authorization document
(EAD) card?
It is important to remember that re-verification of work
authorization is only necessary if the employee notes an
expiration date of work authorization in Section 1 of the Form
I-9. If re-verification (i.e. asking the employee to establish
employment eligibility at a later date) is necessary, the
Employer should have a tracking system to re-verify the
employment authorization for employees who only have temporary authorization to
work. This will also help ensure that the company’s I-9 records remain in compliance.
Also, keep in mind that the Employer cannot require the employee to present any
specific document upon re-verification. It is still the employee's choice which valid
documents to present from those that are listed on the I-9 form.
Should an Employer require an applicant to complete the I-9 form before
hire?
No, Employer should not ask an applicant to complete an I-9 form before
offering employment to the applicant. The I-9 form contains certain information in
Section I that could be used as evidence against an Employer in a national origin or
racial discrimination claim.
How long must an Employer keep I-9 records?
An Employer must retain I-9 records for at least three years from the
employee’s date of hire or for one year after the employment terminates, whichever
occurs later. For instance, if an employee is hired and leaves after only two months of
employment, you will keep the I-9 records for 3 years after the initial hire date. If an
employee is hired and works for you for 12 years, then you will keep the records for
an additional year after the employee leaves your employ, for a total of 13 years.
I-9 records should be maintained by the Employer in a separate “I-9” file, apart
from other personnel records. I-9 forms for current employees should be kept in one
file and I-9 records for employees no longer employed by the company should be
kept in a separate file. The files pertaining to persons no longer employed should be
examined at least monthly and removed once the period of time to maintain the
records has past.
Why must an Employer keep these records?
There is no need
to re-verify based
solely upon driver's
license, permanent
resident card, or
passport expiration.

The law requires that an Employer prepare an I-9 form for all its employees
and keep records of the I-9 process for the term set forth above. The law also
provides stiff penalties for those who fail to comply.
What does “’knowing’ the alien is an unauthorized alien” mean for the
purposes of the law?
The term knowing includes having actual or constructive knowledge.
Constructive knowledge is knowledge that may fairly be inferred through certain facts
and circumstances that would lead a reasonable person to know about the worker's
employment authorization or lack thereof. Examples of situations where the
Employer may, depending on the totality of relevant circumstances, have constructive
knowledge that an employee is an unauthorized alien include, but are not limited to,
situations where the Employer:
(i) Fails to complete or improperly completes the Employment Eligibility
Verification, Form I–9;
(ii) Acts with reckless and wanton disregard for the legal consequences of
permitting another individual to introduce an unauthorized alien into its work force or
to act on its behalf; and
(iii) Fails to take reasonable steps after receiving information indicating that the
employee may be an alien who is not employment authorized, such as—
(A) An employee's request that the Employer file a labor certification or
employment-based visa petition on behalf of the employee;
(B) Written notice to the Employer from the Social Security Administration
reporting earnings on a Form W–2 that employees' names and corresponding social
security account numbers fail to match Social Security Administration records (see
Employer Alert later in this chapter); or
(C) Written notice to the Employer from the Department of Homeland
Security that the immigration status document or employment authorization
document presented or referenced by the employee in completing Form I–9 is
assigned to another person, or that there is no agency record that the document has
been assigned to any person.
What are the penalties for knowingly hiring or continuing to employ an
unauthorized alien worker?
An Employer found to have knowingly hired, recruited or referred for a fee, or
continued to employ, an unauthorized alien for employment in the United States shall
be subject to an order to cease and desist from the unlawful behavior and to pay a
civil fine. An Employer can be fined:

$375 - $3,200 per unauthorized alien with respect to the first
offense.
$3,200 - $6,500 per unauthorized alien for a second offense.
$4,300 - $16,000 per unauthorized alien for each third or
subsequent offense.
What other penalties exist relating to the verification rules?
The IRCA imposes numerous other civil and criminal penalties for Employers
who run afoul of the verification rules:
Failure to Comply with Form I-9 Requirements
Employers who fail to properly complete, retain, and/or present Forms I-9 for
inspection by ICE can incur civil penalties from $110 to $1,100 per employee whose
Form I-9 is not properly completed, retained, and/or presented. To determine the
amount of the civil penalty, the government will consider the size of the business of
the Employer being charged; the good faith of the Employer; the seriousness of the
violation; whether or not the individual was an unauthorized alien; and any history of
previous violations.
Requiring Indemnification from the Employee
Employers who require a bond or indemnity from an employee against liability
under the Employer sanctions laws may be fined up to $1,100 for each and ordered to
reimburse the person required to pay the indemnity. If that person cannot be located,
payment is made to the U.S. Treasury.
Engaging in a Pattern or Practice of Knowingly Hiring or Continuing
to Employ Unauthorized Aliens
Employers convicted of having engaged in a pattern or practice of knowingly
hiring unauthorized aliens or continuing to employ aliens knowing that they are or
have become unauthorized to work in the United States may be fined up to $3,000
per unauthorized employee and/or face up to 6 months of imprisonment.
Engaging in Fraud or False Statements, or Otherwise Misusing Visas,
Immigration Permits, and Identity Documents
Persons who knowingly use fraudulent identification documents, identity
documents that were issued to persons other than themselves, or false attestations for
the purpose of satisfying the employment eligibility verification requirements, may be
fined and/or imprisoned for up to 5 years.
These penalties
also apply to
contractors, if the
Employer knows
that they are
unauthorized to
work.

How will the government know of a violation?
Big Brother, especially the Department of Homeland Security (DHS), is
watching all of us all of the time now. The primary enforcement arm of the DHS for
Employer verification rules is the Immigration and Customs Enforcement agency
(ICE). In addition, many federal and state agencies, such as the Department of Labor
and Social Security Administration, cooperate with ICE to provide information and
enforcement resources. Keep in mind that whistle blowers often alert the government
to perceived Employer wrongdoing.
Anti-Discrimination Rules
What are the anti-discrimination rules for Employers?
When IRCA was under consideration by Congress, concern was expressed the
Employers would attempt to avoid the penalties for hiring unauthorized aliens by
simply refusing to hire anyone who did not look or sound "American." To address
these concerns, IRCA identifies certain unfair employment practices that Employers
must avoid:
(1) Citizenship status discrimination - an Employer cannot fire or refuse
to hire an individual based solely upon his or her citizenship status, or because of the
individual's type of work authorization. For example, in general, an Employer cannot
refuse to hire an individual because he or she is a permanent resident, rather than a
U.S. citizen.
(2) National origin discrimination - an Employer cannot treat an
applicant or an employee differently because of that individual's country of origin,
ancestry, native language, or accent. For example, in general, an Employer cannot
refuse to hire an individual because he or she is speaks English with a Spanish accent.
(3) Retaliation - an Employer cannot intimidate or retaliate against any
employee who makes a complaint about immigration-related discrimination.
(4) Document abuse - an Employer cannot subject applicants or employees
to more rigorous verification procedures than required by the I-9 verification rules.
Specifically, it is an unfair employment practice for an Employer to request more or
In addition to the civil and criminal penalties under the IRCA, the
government may charge Employers or individuals with criminal
violations of other federal laws which can result in imprisonment for
up to 10 years.

different documents than are required or to refuse to accept compliant documents
that appear to be reasonably genuine. A more detailed discussion regarding document
abuse is found below.
How can an Employer avoid charges of document abuse?
The basic rule for Employers to follow to avoid any charge of unfair
immigration-related employment practices is to treat all applicants and employees as if
they were U.S. citizens. To avoid charges of document abuse, Employers should:
Not request a specific I-9 document, e.g. a green card, to verify employment
eligibility.
Not request a specific I-9 document with the intent of discriminating
against an applicant.
Not refuse to accept an unexpired I-9 document merely because it bears an
expiration date.
Accept whatever I-9 document the employee presents, if the document is
compliant and appears to be genuine.
How can an Employer avoid charges of citizenship status or national
origin discrimination?
The basic rule for Employers to follow to avoid any charge of unfair
immigration-related employment practices is to treat all applicants and employees as if
they were U.S. citizens. To avoid charges of citizenship status or national origin
discrimination, Employers should:
Not limit job openings to U.S. citizens (no "citizens only" advertisements)
unless U.S. Citizenship is required by law, regulation, court order, or
government contract.
Not favor a U.S. citizen over another protected worker unless the citizen
application is equally qualified over the other applicant.
Not discriminate against an individual on the basis of citizenship status,
national origin, accent, or cultural characteristics.
Not require English proficiency for jobs that do not reasonably require it.
Are all applicants or employees protected by IRCA anti-discrimination
rules?
For claims of citizenship status or national origin discrimination or document
abuse, IRCA protects individuals who are citizens or nationals of the United States,
aliens lawfully admitted for permanent or temporary residence, refugees, and asylees.
For claims of retaliation, IRCA protects all individuals.

What government agency enforces the anti-discrimination rules?
IRCA created the Office of Special Counsel for Immigration Related Unfair
Employment Practices (OSC) under the arm of the U.S. Department of Justice to
enforce the anti-discrimination rules. The OSC investigates and prosecutes claims of
citizenship status discrimination, national origin discrimination, document abuse and
retaliation. However, the OSC's jurisdiction is limited to citizenship status
discrimination claims against Employers with four or more employees and to national
original discrimination charges against Employers with four to fifteen employees. The
OSC refers national origin discrimination charges against Employer with greater than
15 employees to the Equal Employment Opportunity Commission (EEOC) or an
appropriate state human rights commission.
The OSC also collaborates with various other agencies to address immigration
discrimination concerns. These agencies include the Social Security Administration,
the U.S. Department of Labor, the U.S. Department of Health and Human Services,
and the U.S. Department of Homeland Security.
What are the IRCA penalties relating to the anti-discrimination rules?
If an OSC or EEOC investigation reveals employment discrimination covered
by the Immigration and Nationality Act, the Employer will be ordered to cease the
prohibited practice and may be ordered to take one or more of the following steps:
Hire or reinstate, with or without back pay, individuals directly injured by
the discrimination;
Lift any restrictions on an employee’s assignments, work shifts, or
movements;
Post notices to employees about their rights and about Employers’
obligations;
Educate all personnel involved in hiring and in complying with the
Employer sanctions and anti-discrimination laws;
Remove a false performance review or false warning from an employee’s
personnel file.
Pay civil monetary penalties of $375 - $2,200 per individual discriminated
against for the first offense, $3,200 - $6,500 per individual discriminated
against for the second offense, $4,300 - $16,000 per individual discriminated
against for subsequent offenses.
Pay fines from $110 to $1100 for each individual determined to have
suffered from document abuse.
Pay the individual's attorneys fees

May an unauthorized worker file a discrimination claim against an
Employer?
Yes, the EEOC will accept and prosecute discrimination claims from any worker
regardless of their immigration status. Even workers who are unauthorized to work or
are undocumented may file claims with the EEOC and other federal agencies which
administer labor laws. Employers must be mindful of this fact in their I-9 processing
and avoid overzealous verification procedures which may give rise to discrimination
charges or other labor law violations.

HOT TIP #1
Pitfalls to Avoid on the I-9 Form
The Employer and/or employee fails to sign and date the I-9 forms where
indicated on the form.
The employee fails to complete section 1 of the I-9 Form on the first date of
work.
The Employer does not examine the I-9 documents and fails to complete section 2
of the I-9 form with three business days of hire.
The Employer leaves the start date for work blank in the "certification" block of
section 2.
The employee does not mark one of the three blocks in section 1 regarding his or
her status or fails to provide the necessary information for the second and third
blocks. The employee must indicate whether he is a U.S. citizen, permanent
resident, or otherwise authorized to be employed.
The Employer forgets to track the expiration date of work authorization and does
not re-verify an employee's employment authorization on or before the expiration
date listed on the I-9 form.
The Employer over-documents and lists too many documents in section 2. This
could lead to a discrimination charge against the Employer.
The Employer looks at photocopies rather than original verification documents.
The employee must present original documents and the Employer should never
accept photocopies of documents for verification.
The Employer fails to match the employee's verification documents - the
Employer should look for a match and consistency in the employee's name and
date of birth on the documents.
The Employer fails to consistently apply its photocopying policy. The law does
not require Employer to make copies of verification documents; however, if the
Employer does make copies, it must make copies for all employees, not just some.
And, any copies of verification documents must be kept with the I-9 form and no
where else.
The Employer representative who sees the documents is the same as the one who
signs the form. The Employer representative who reviews the documents must
also sign the I-9 form.

HOT TIP #2
Employer Alert
Social Security No-Match Regulations:
To Know or Not to Know?
As you may know, for years the Social Security Administration (SSA)
has sent "no-match" or “mismatch” letters to Employers if the name and Social
Security information reported by a worker on a W-2 form did not match up
with the information contained in the SSA databases. According to the SSA,
the "no match" letters were not necessarily considered reason to believe that an
employee did not have permission to work in the U.S., and Employers who
received the "no-match" letters were not required to take any action. Usually
the employee would also receive a letter at home, and the burden would be
upon the employee to clear up the typographical or reporting error that might
have led to the mismatch.
A new regulation from the Department of Homeland Security (DHS)
would now have the DHS sending out mismatch or no-match letters. Under
this new regulation, effective September 14, 2007, the Employer would be
required to proactively respond to the Employer Correction Request (“no-
match”) letter and work to clear up the discrepancy within 90 days or face
penalties from the government. The SSA has letters to an estimated 140,000
Employers, affecting an estimated 8,000,000 workers on hold pending the
outcome of the court proceedings over this new regulation.
Currently, the DHS has withdrawn this proposed regulation because of
lawsuits filed in federal court. However, the government intends to re-
present these regulations in the future. Therefore, until there is a final
decision on whether or not the new DHS rule is legal, the government is
blocked from implementing the new rule and its Employer penalties.
However, it is important for Employers to be aware of this rule which
may eventually be implemented.
According to these new no-match regulations, an Employer who
receives written notice from the Social Security Administration that the
provided name and social security number do not match (a “mismatch” or “no
match” letter) will have constructive knowledge that the employee is not
authorized to work unless the Employer takes certain safe harbor actions.

What will happen if the Employer receives a no-match letter?
If the rule is found legal and is implemented by the DHS, the Employer
will have to carefully follow a prescribed course of action in response to a no-
match letter in order to avoid having the DHS use the no-match as a basis for
finding that the Employer had constructive knowledge that the employee was
an alien not authorized to work in the United States.
What can the Employer do to protect themselves in the event they
receive such a letter?
The rule creates a “safe harbor” for Employers if they follow the
prescribed sequence of “reasonable” steps and comply with the prescribed
actions. If the new rule is implemented, the following proactive process of
“reasonable steps” on the part of Employers will be required upon receipt of a
mismatch or no-match letter from either the DHS or SSA:
(I) A “reasonable” Employer checks its records promptly after receiving
a no-match letter to determine whether the discrepancy results from a
typographical, transcription, or similar clerical error in the Employer's records,
or in its communication to the SSA or DHS. If there is such an error, the
Employer corrects its records, informs the relevant agencies; verifies with the
relevant agency that the information in the Employer's files matches the
agency's records; and makes a record of the manner, date, and time of the
verification. These steps must occur within 30 days of receipt of the no-
match letter.
(II) If such actions do not resolve the discrepancy, a reasonable
Employer would promptly request that the employee confirm that the
Employer's records are correct. If they are not correct, the Employer would
take the actions needed to correct them, inform the relevant agencies (in
accordance with the letter's instructions, if any), and verify the corrected
records with the relevant agency. If the records are correct according to the
employee, the reasonable Employer would ask the employee to pursue the
matter personally with the relevant agency, such as by visiting a local SSA office
and bringing original documents or certified copies to prove age, identity,
citizenship or alien status, and other relevant documents, such as proof of a
name change. These steps must occur within 30 days of receipt of the no-
match letter.

NOTE: the government will only consider a discrepancy to be resolved
if the Employer goes through the final step of verifying with the SSA or DHS,
as the case may be, that the employee's name matches in SSA's records the
number assigned to that name, or, with respect to DHS letters, verifies the
authorization with DHS that DHS records indicate that the immigration status
document or employment authorization document was assigned to the
employee. Employers may verify a SSN with SSA by telephoning toll-free 1-
800-772-6270, weekdays from 7 a.m. to 7 p.m. EST. For information on SSA's
online verification procedure, see http://www.ssa.gov/Employer/ssnv.htm.
Employers should make a record of the manner, date, and time of any such
verification, as the SSA may not provide any documentation.
What can the Employer do if they haven’t been able to resolve the
discrepancy with the employee within 90 days?
The regulation describes a verification procedure that the Employer may
follow if the discrepancy is not resolved within ninety days of receipt of the no-
match letter. This procedure would verify (or fail to verify) the employee's
identity and work authorization. If the described procedure is completed, and
the employee is verified, then even if the employee is in fact not authorized to
work in the United States, the Employer will not be considered to have
constructive knowledge of that fact based on receipt of the no-match letter.
This final rule, however, will not provide a safe harbor for Employers that for
some other reason have actual or constructive knowledge that they are
employing an alien not authorized to work in the United States.
If within 90 days the discrepancy referred to in the no-match
letter is not resolved, and if the employee's identity and work
authorization cannot be verified using a reasonable verification
procedure, such as that described in this regulation, then the Employer
must choose between:
(1) Terminating the employment of the employee, or
(2) Facing the risk that DHS may find that the Employer had
constructive knowledge that the employee was an unauthorized alien and
therefore, by continuing to employ the alien, violated Section 274A(a)(2) of the
IRCA rules. This finding could result in stiff penalties being imposed by the
DHS as described previously in this chapter.
What is the verification procedure required if the Employer hasn't
been able to resolve the discrepancy with the employee within 90 days?
The procedure to verify the employee's identity and work authorization
described in the rule involves the Employer's and employee's completing a new

Form I-9, Employment Eligibility Verification Form, using the same
procedures as if the employee were newly hired. Under the regulation, both
Section 1 (``Employee Information and Verification'') and Section 2
(``Employer Review and Verification'') would need to be completed within
ninety-three days of receipt of the no-match letter. Therefore, if an Employer
and employee tried to resolve the discrepancy described in the no-match letter
for the full ninety days provided for in the regulation, they have an additional
three days to complete a new Form I-9. (Under current regulations, three days
are provided for the completion of the form after a new hire.)
What is the timing of Employer actions under the new rule to create
a “safe harbor”?
Timing of Employer Actions Under New No-Match Rules
Action Rule
Employer receives letter from SSA or
DHS indicating mismatch of employee,
name and Social Security number
Day 0
Employer checks own records, makes any
necessary corrections of errors, and
verifies corrections with SSA or DHS
0 to 30 days
If necessary, Employer notifies the
employee and asks employee to assist in the
correction of the record.
0 to 90 days
If necessary, Employer corrects its own
records and verifies correction with
SSA or DHS
0 to 90 days
If necessary, Employer performs special
I-9 verification procedure.
90 to 90 days
Should an Employer implement these procedures now to comply
with the rules?
As of this writing, the rules are not official because of the court order
barring their implementation. Employers should consult with an immigration
attorney for a complete review and analysis of their employment verification
procedures before implementing these no-match rule procedures.

Department of Homeland Security
U.S. Citizenship and Immigration Services
Form I-9, Employment
Eligibility Verification
Anti-Discrimination Notice. It is illegal to discriminate against
any individual (other than an alien not authorized to work in the
U.S.) in hiring, discharging, or recruiting or referring for a fee
because of that individual's national origin or citizenship status. It
is illegal to discriminate against work eligible individuals.
Employers CANNOT specify which document(s) they will accept
from an employee. The refusal to hire an individual because the
documents presented have a future expiration date may also
constitute illegal discrimination.
All employees, citizens and noncitizens, hired after November
6, 1986 and working in the United States must complete a
Form I-9.
OMB No. 1615-0047; Expires 06/30/08
Preparer/Translator Certification. The Preparer/Translator
Certification must be completed if Section 1 is prepared by a
person other than the employee. A preparer/translator may be
used only when the employee is unable to complete Section 1
on his/her own. However, the employee must still sign
Section 1 personally.
Form I-9 (Rev. 06/05/07) N
Please read all instructions carefully before completing this form.
Instructions
When Should the Form I-9 Be Used?
What Is the Purpose of This Form?
The purpose of this form is to document that each new
employee (both citizen and non-citizen) hired after November
6, 1986 is authorized to work in the United States.
Section 2, Employer: For the purpose of completing this
form, the term "employer" means all employers including
those recruiters and referrers for a fee who are agricultural
associations, agricultural employers or farm labor contractors.
Filling Out the Form I-9
document(s) within three business days, they must present a
receipt for the application of the document(s) within three
business days and the actual document(s) within ninety (90)
days. However, if employers hire individuals for a duration of
less than three business days, Section 2 must be completed at
the time employment begins. Employers must record:
Section 1, Employee: This part of the form must be
completed at the time of hire, which is the actual beginning of
employment. Providing the Social Security number is
voluntary, except for employees hired by employers
participating in the USCIS Electronic Employment Eligibility
Verification Program (E-Verify). The employer is
responsible for ensuring that Section 1 is timely and
properly completed.
1. Document title;
2. Issuing authority;
3. Document number;
4. Expiration date, if any; and
5. The date employment begins.
Employers must sign and date the certification. Employees
must present original documents. Employers may, but are not
required to, photocopy the document(s) presented. These
photocopies may only be used for the verification process and
must be retained with the Form I-9. However, employers are
still responsible for completing and retaining the Form I-9.
Employers must complete Section 2 by examining evidence
of identity and employment eligibility within three (3)
business days of the date employment begins. If employees
are authorized to work, but are unable to present the required
Section 3, Updating and Reverification: Employers must
complete Section 3 when updating and/or reverifying the Form
I-9. Employers must reverify employment eligibility of their
employees on or before the expiration date recorded in Section
1. Employers CANNOT specify which document(s) they will
accept from an employee.
B. If an employee is rehired within three (3) years of the
date this form was originally completed and the
employee is still eligible to be employed on the same
basis as previously indicated on this form (updating),
complete Block B and the signature block.
C. If an employee is rehired within three (3) years of the
date this form was originally completed and the
employee's work authorization has expired or if a
current employee's work authorization is about to
expire (reverification), complete Block B and:
A. If an employee's name has changed at the time this
form is being updated/reverified, complete Block A.
1. Examine any document that reflects that the
employee is authorized to work in the U.S. (see
List A or C);
2. Record the document title, document number and
expiration date (if any) in Block C, and
3. Complete the signature block.

EMPLOYERS MUST RETAIN COMPLETED FORM I-9
PLEASE DO NOT MAIL COMPLETED FORM I-9 TO ICE OR USCIS
Form I-9 (Rev. 06/05/07) N Page 2
To order USCIS forms, call our toll-free number at 1-800-870-
3676. Individuals can also get USCIS forms and information
on immigration laws, regulations and procedures by
telephoning our National Customer Service Center at 1-800-
375-5283 or visiting our internet website at www.uscis.gov.
USCIS Forms and Information
What Is the Filing Fee?
There is no associated filing fee for completing the Form I-9.
This form is not filed with USCIS or any government agency.
The Form I-9 must be retained by the employer and made
available for inspection by U.S. Government officials as
specified in the Privacy Act Notice below.
The authority for collecting this information is the
Immigration Reform and Control Act of 1986, Pub. L. 99-603
(8 USC 1324a).
Privacy Act Notice
This information is for employers to verify the eligibility of
individuals for employment to preclude the unlawful hiring, or
recruiting or referring for a fee, of aliens who are not
authorized to work in the United States.
This information will be used by employers as a record of
their basis for determining eligibility of an employee to work
in the United States. The form will be kept by the employer
and made available for inspection by officials of U.S.
Immigration and Customs Enforcement, Department of Labor
and Office of Special Counsel for Immigration Related Unfair
Employment Practices.
Submission of the information required in this form is
voluntary. However, an individual may not begin employment
unless this form is completed, since employers are subject to
civil or criminal penalties if they do not comply with the
Immigration Reform and Control Act of 1986.
We try to create forms and instructions that are accurate, can
be easily understood and which impose the least possible
burden on you to provide us with information. Often this is
difficult because some immigration laws are very complex.
Accordingly, the reporting burden for this collection of
information is computed as follows: 1) learning about this
form, and completing the form, 9 minutes; 2) assembling and
filing (recordkeeping) the form, 3 minutes, for an average of
12 minutes per response. If you have comments regarding the
accuracy of this burden estimate, or suggestions for making
this form simpler, you can write to: U.S. Citizenship and
Immigration Services, Regulatory Management Division, 111
Massachusetts Avenue, N.W., 3rd Floor, Suite 3008,
Washington, DC 20529. OMB No. 1615-0047.
Paperwork Reduction Act
A blank Form I-9 may be reproduced, provided both sides are
copied. The Instructions must be available to all employees
completing this form. Employers must retain completed Forms
I-9 for three (3) years after the date of hire or one (1) year
after the date employment ends, whichever is later.
Photocopying and Retaining the Form I-9
The Form I-9 may be signed and retained electronically, as
authorized in Department of Homeland Security regulations
at 8 CFR 274a.2.§

Department of Homeland Security
U.S. Citizenship and Immigration Services
Form I-9, Employment
Eligibility Verification
OMB No. 1615-0047; Expires 06/30/08
Please read instructions carefully before completing this form. The instructions must be available during completion of this form.
ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work eligible individuals. Employers CANNOT
specify which document(s) they will accept from an employee. The refusal to hire an individual because the documents have a
future expiration date may also constitute illegal discrimination.
Section 1. Employee Information and Verification. To be completed and signed by employee at the time employment begins.
Print Name: Last First Middle Initial Maiden Name
Address (Street Name and Number) Apt. # Date of Birth (month/day/year)
StateCity Zip Code Social Security #
A lawful permanent resident (Alien #) A
A citizen or national of the United StatesI am aware that federal law provides for
imprisonment and/or fines for false statements or
use of false documents in connection with the
completion of this form.
An alien authorized to work until
(Alien # or Admission #)
Employee's Signature Date (month/day/year)
Preparer and/or Translator Certification. (To be completed and signed if Section 1 is prepared by a person other than the employee.) I attest, under
penalty of perjury, that I have assisted in the completion of this form and that to the best of my knowledge the information is true and correct.
Address (Street Name and Number, City, State, Zip Code)
Print NamePreparer's/Translator's Signature
Date (month/day/year)
Section 2. Employer Review and Verification. To be completed and signed by employer. Examine one document from List A OR
examine one document from List B and one from List C, as listed on the reverse of this form, and record the title, number and
expiration date, if any, of the document(s).
ANDList B List CORList A
Document title:
Issuing authority:
Document #:
Expiration Date (if any):
Document #:
Expiration Date (if any):
and that to the best of my knowledge the employee is eligible to work in the United States. (State(month/day/year)
employment agencies may omit the date the employee began employment.)
CERTIFICATION - I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that
the above-listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment on
Print Name TitleSignature of Employer or Authorized Representative
Date (month/day/year)Business or Organization Name and Address (Street Name and Number, City, State, Zip Code)
B. Date of Rehire (month/day/year) (if applicable)A. New Name (if applicable)
C. If employee's previous grant of work authorization has expired, provide the information below for the document that establishes current employment eligibility.
Document #: Expiration Date (if any):Document Title:
Section 3. Updating and Reverification. To be completed and signed by employer.
l attest, under penalty of perjury, that to the best of my knowledge, this employee is eligible to work in the United States, and if the employee presented
document(s), the document(s) l have examined appear to be genuine and to relate to the individual.
Date (month/day/year)Signature of Employer or Authorized Representative
Form I-9 (Rev. 06/05/07) N
I attest, under penalty of perjury, that I am (check one of the following):

For persons under age 18 who
are unable to present a
document listed above:
LISTS OF ACCEPTABLE DOCUMENTS
LIST A LIST B LIST C
2. Permanent Resident Card or Alien
Registration Receipt Card (Form
I-551)
7. Unexpired employment
authorization document issued by
DHS (other than those listed under
List A)
1. Driver's license or ID card issued by
a state or outlying possession of the
United States provided it contains a
photograph or information such as
name, date of birth, gender, height,
eye color and address
1. U.S. Social Security card issued by
the Social Security Administration
(other than a card stating it is not
valid for employment)
9. Driver's license issued by a Canadian
government authority
1. U.S. Passport (unexpired or expired)
2. Certification of Birth Abroad
issued by the Department of State
(Form FS-545 or Form DS-1350)
3. An unexpired foreign passport with a
temporary I-551 stamp
4. An unexpired Employment
Authorization Document that contains
a photograph
(Form I-766, I-688, I-688A, I-688B)
3. Original or certified copy of a birth
certificate issued by a state,
county, municipal authority or
outlying possession of the United
States bearing an official seal
3. School ID card with a photograph
5. An unexpired foreign passport with
an unexpired Arrival-Departure
Record, Form I-94, bearing the same
name as the passport and containing
an endorsement of the alien's
nonimmigrant status, if that status
authorizes the alien to work for the
employer
6. Military dependent's ID card
4. Native American tribal document
7. U.S. Coast Guard Merchant Mariner
Card
5. U.S. Citizen ID Card (Form I-197)
8. Native American tribal document
6. ID Card for use of Resident
Citizen in the United States (Form
I-179)
10. School record or report card
11. Clinic, doctor or hospital record
12. Day-care or nursery school record
Illustrations of many of these documents appear in Part 8 of the Handbook for Employers (M-274)
2. ID card issued by federal, state or
local government agencies or
entities, provided it contains a
photograph or information such as
name, date of birth, gender, height,
eye color and address
Form I-9 (Rev. 06/05/07) N Page 2
4. Voter's registration card
5. U.S. Military card or draft record
Documents that Establish Both
Identity and Employment
Eligibility
Documents that Establish
Identity
Documents that Establish
Employment Eligibility
OR AND

Appendix B
Social Security No-Match Regulation
and Proposed No-Match Letter Samples
27

45612 Federal Register / Vol. 72, No. 157 / Wednesday, August 15, 2007 / Rules and Regulations
regulations or forms unrelated to or not
addressed by the proposed rule, changes
in procedures of agencies other than
DHS, or resolution of other issues were
not within the scope of the rulemaking
or the authority of DHS, and are not
addressed in this final rule.
The comments frequently repeated
specific issues (including specific text).
Approximately 4,800 comments in
several mass mailings were received.
Several organizations also submitted
identical or nearly identical comments.
At the request of a broad-based
coalition of national business and trade
associations, DHS met with
representatives of the organization and
its constituent organizations on June 20,
2006. A summary of that meeting
including a list of attendees has been
placed on the docket for this
rulemaking.
Each comment received was reviewed
and considered in the preparation of
this final rule. This final rule addresses
the comments by issue rather than by
referring to specific commenters or
comments. All of the comments
received electronically or on paper may
be reviewed at the United States
Government’s electronic docket system,
www.regulations.gov, under docket
number ICEB–2006–0004.
B. The Issue Presented
Employers annually send the Social
Security Administration (SSA) millions
of earnings reports (W–2 Forms) in
which the combination of employee
name and social security number (SSN)
does not match SSA records. In some of
these cases, SSA sends a letter, such as
an ‘‘Employer Correction Request’’, that
informs the employer of the mismatch.
The letter is commonly referred to as an
employer ‘‘no-match letter.’’ There can
be many causes for a no-match,
including clerical error and name
changes. One potential cause may be the
submission of information for an alien
who is not authorized to work in the
United States and who may be using a
false SSN or a SSN assigned to someone
else. Such a letter may be one indicator
to an employer that one of its employees
may be an unauthorized alien.
U.S. Immigration and Customs
Enforcement (ICE) sends a similar letter
(currently called a ‘‘Notice of Suspect
Documents’’) after it has inspected an
employer’s Employment Eligibility
Verification forms (Forms I–9) during an
investigation audit and after
unsuccessfully attempting to confirm, in
agency records, that an immigration
status document or employment
authorization document presented or
referenced by the employee in
completing the Form I–9 was assigned
to that person. (After a Form I–9 is
completed by an employer and
employee, it is retained by the employer
and made available to DHS investigators
on request, such as during an audit.)
This regulation describes an
employer’s current obligations under
immigration laws, and its options for
avoiding liability, after receiving such a
letter from either SSA or DHS. The
regulation specifies step by step actions
that can be taken by the employer that
will be considered by DHS to be a
reasonable response to receiving a no-
match letter—a response that will
eliminate the possibility that the no-
match letter can be used as any part of
an allegation that an employer had
constructive knowledge that it was
employing an alien not authorized to
work in the United States, in violation
of section 274A(a)(2) of the Immigration
and Nationality Act (INA), 8 U.S.C.
1324a(a)(2) . This provision of the INA
states:
It is unlawful for a person or other entity,
after hiring an alien for employment in
accordance with paragraph (1), to continue to
employ the alien in the United States
knowing the alien is (or has become) an
unauthorized alien with respect to such
employment. [Emphasis added.]
Both regulation and case law support
the view that an employer can be in
violation of section 274A(a)(2), 8 U.S.C.
1324a(a)(2) by having constructive
rather than actual knowledge that an
employee is unauthorized to work. A
definition of ‘‘knowing’’ first appeared
in the regulations on June 25, 1990 at 8
CFR 274a.1(l)(1). See 55 FR 25,928. That
definition stated:
The term ‘‘knowing’’ includes not only
actual knowledge but also knowledge which
may fairly be inferred through notice of
certain facts and circumstances which would
lead a person, through the exercise of
reasonable care, to know about a certain
condition.
As noted in the preamble to the
original regulation, that definition,
which is essentially the same as the
definition adopted in this rule, is
consistent with the Ninth Circuit’s
holding in Mester Mfg. Co. v. INS, 879
F.2d 561, 567 (9th Cir. 1989) (holding
that when an employer who received
information that some employees were
suspected of having presented a false
document to show work authorization,
such employer had constructive
knowledge of their unauthorized status
when the employer failed to make any
inquiries or take appropriate corrective
action). The court cited its previous
opinion explaining ‘‘deliberate failure to
investigate suspicious circumstances
imputes knowledge.’’ Id. at 567 (citing
United States v. Jewell, 532 F.2d 697
(9th Cir. 1976) (en banc)). See also New
El Rey Sausage Co. v. INS, 925 F.2d
1153, 1158 (9th Cir. 1991).
The preceding regulatory language
also begins the current regulatory
definition of ‘‘knowing,’’ which is still
at 8 CFR 274a.1(l)(1). In the current
definition, additional language follows
this passage, describing situations that
may involve constructive knowledge by
the employer that an employee is not
This language was added on August 23,
1991. See 56 FR 41,767. The current
definition contains an additional,
concluding paragraph, which
specifically precludes use of foreign
appearance or accent to infer that an
employee may be unlawful, and to the
documents that may be requested by an
employer as part of the verification
system that must be used at the time of
hiring, as required by INA section
274A(a)(1)(B), 8 U.S.C. 1324a(a)(1)(B).
This paragraph will be described in
greater detail below. The verification
system referenced in this paragraph is
described in INA section 274A(b), 8
U.S.C. 1324a(b).
C. Final Rule
The final rule amends the definition
of ‘‘knowing’’ in 8 CFR 274a.1(l)(1), in
the portion relating to ‘‘constructive
knowledge.’’ First, it adds two more
examples to the existing examples of
information available to an employer
indicating that an employee could be an
alien not authorized to work in the
United States. It also explicitly states
the employer’s obligations under
current law after receiving a no-match
letter or the other information identified
in 8 CFR 274a.1. If the employer fails to
take reasonable steps after receiving
such information, and if the employee is
in fact not authorized to work in the
United States, the employer may be
found to have had constructive
knowledge of that fact. The final rule
also states explicitly another
implication of the employer’s obligation
under current law—whether an
employer would be found to have
constructive knowledge in particular
cases of the kind described in each of
the examples (the ones in the current
regulation and in the new regulation)
depends on the ‘‘totality of relevant
circumstances’’ present in the particular
case. This standard applies in all cases.
The additional examples are:
(1) Written notice to an employer
from SSA, e.g. an ‘‘Employer Correction
Request,’’ that the combination of name
and SSN submitted for an employee
does not match SSA records; and
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45613Federal Register / Vol. 72, No. 157 / Wednesday, August 15, 2007 / Rules and Regulations
(2) Written notice from DHS that the
immigration status document, or
employment authorization document,
presented or referenced by the employee
in completing Form I–9 was assigned to
another person, or that there is no
agency record that the document was
assigned to anyone.
The regulation also describes more
specifically the steps that an employer
might take after receiving a no-match
letter, steps that DHS considers
reasonable. By taking these steps in a
timely fashion, an employer would
avoid the risk that the no-match letter
would be used as any part of an
allegation that the employer had
constructive knowledge that the
employee was not authorized to work in
the United States. The steps that a
reasonable employer may take include
the following:
(I) A reasonable employer checks its
records promptly after receiving a no-
match letter to determine whether the
discrepancy results from a
typographical, transcription, or similar
clerical error in the employer’s records,
or in its communication to the SSA or
DHS. If there is such an error, the
employer corrects its records, informs
the relevant agencies; verifies that the
name and number, as corrected, match
agency records—in other words, verifies
with the relevant agency that the
information in the employer’s files
matches the agency’s records; and
makes a record of the manner, date, and
time of the verification. ICE would
consider a reasonable employer to have
acted promptly if the employer took
such steps within thirty days of receipt
of the no-match letter.
(II) If such actions do not resolve the
discrepancy, a reasonable employer
would promptly request that the
employee confirm that the employer’s
records are correct. If they are not
correct, the employer would take the
actions needed to correct them, inform
the relevant agencies (in accordance
with the letter’s instructions, if any),
and verify the corrected records with
the relevant agency. If the records are
correct according to the employee, the
reasonable employer would ask the
employee to pursue the matter
personally with the relevant agency,
such as by visiting a local SSA office,
bringing original documents or certified
copies required by SSA, which might
include documents that prove age,
identity, citizenship or alien status, and
other relevant documents, such as proof
of a name change, or by mailing these
documents or certified copies to the
SSA office, if permitted by SSA. ICE
would consider a reasonable employer
to have acted promptly if the employer
took such steps within thirty days of
receipt of the no-match letter. The
regulation provides that a discrepancy
will be considered resolved only if the
employer verifies with SSA or DHS, as
the case may be, that the employee’s
name matches in SSA’s records the
number assigned to that name, or, with
respect to DHS letters, verifies the
authorization with DHS that DHS
records indicate that the immigration
status document or employment
authorization document was assigned to
the employee. In the case of a number
from SSA, the valid number may be the
number that was the subject of the no-
match letter or a different number, for
example a new number resulting from
the employee’s contacting SSA to
resolve the discrepancy. Employers may
verify a SSN with SSA by telephoning
toll-free 1–800–772–6270, weekdays
from 7 a.m. to 7 p.m. EST. See http://
www.ssa.gov/employer/
ssnvadditional.htm. For information on
SSA’s online verification procedure, see
http://www.ssa.gov/employer/ssnv.htm.
Employers should make a record of the
manner, date, and time of any such
verification, as SSA may not provide
any documentation.
(III) The regulation also describes a
verification procedure that the employer
may follow if the discrepancy is not
resolved within ninety days of receipt of
the no-match letter. This procedure
would verify (or fail to verify) the
employee’s identity and work
authorization. If the described
procedure is completed, and the
employee is verified, then even if the
employee is in fact not authorized to
work in the United States, the employer
will not be considered to have
constructive knowledge of that fact
based on receipt of the no-match letter.
This final rule, however, will not
provide a safe harbor for employers that
for some other reason have actual or
constructive knowledge that they are
employing an alien not authorized to
work in the United States.
If the discrepancy referred to in the
no-match letter is not resolved, and if
the employee’s identity and work
authorization cannot be verified using a
reasonable verification procedure, such
as that described in this regulation, then
the employer must choose between:
(1) Taking action to terminate the
employee, or
(2) Facing the risk that DHS may find
that the employer had constructive
knowledge that the employee was an
unauthorized alien and therefore, by
continuing to employ the alien, violated
INA section 274A(a)(2), 8 U.S.C.
1324a(a)(2).
The procedure to verify the
employee’s identity and work
authorization described in the rule
involves the employer’s and employee’s
completing a new Form I–9,
Employment Eligibility Verification
Form, using the same procedures as if
the employee were newly hired, as
described in 8 CFR 274a.2, with certain
restrictions. The regulation identifies
these restrictions:
(1) Under the regulation, both Section
1 (‘‘Employee Information and
Verification’’) and Section 2 (‘‘Employer
Review and Verification’’) would need
to be completed within ninety-three
days of receipt of the no-match letter.
Therefore, if an employer and employee
tried to resolve the discrepancy
described in the no-match letter for the
full ninety days provided for in the
regulation, they have an additional three
days to complete a new Form I–9. Under
current regulations, three days are
provided for the completion of the form
after a new hire. 8 CFR 274a.2(b)(1)(ii).
(2) No document containing the SSN
or alien number that is the subject of the
no-match letter, and no receipt for an
application for a replacement of such a
document, may be used to establish
employment authorization or identity or
both.
(3) No document without a
photograph may be used to establish
identity (or both identity and
employment authorization). (This is
consistent with the documentary
requirements of the United States
Citizenship and Immigration Services’
Electronic Employment Verification
System (EEVS) (formerly called the
‘‘Basic Pilot Program’’). See http://
uscis.gov/graphics/services/SAVE.htm.)
Employers should apply these
procedures uniformly to all of their
employees having unresolved no-match
indicators. If they do not do so, they
may violate applicable anti-
discrimination laws. The regulation also
amends the last paragraph of the current
definition of ‘‘knowing.’’ The existing
regulations provide, in relevant part,
that—
Nothing in this definition should be
interpreted as permitting an employer to
request more or different documents than are
required under section 274[A](b) of the Act
or to refuse to honor documents tendered
that on their face reasonably appear to be
genuine and to relate to the individual.
The final rule clarifies that this
language applies to employers that
receive no-match letters, but that
employers who follow the safe harbor
procedures set forth in this rule
uniformly and without regard to
perceived national origin or citizenship
status as required by the provisions of
30

274B(a)(6) of the INA will not be found
to have engaged in unlawful
discrimination. This clarification is
accomplished by adding the following
language after ‘‘individual’’:
Except a document about which the
employer has received written notice
described in paragraph (l)(1)(iii) of this
section and with respect to which the
employer has received no verification as
described in paragraphs (l)(2)(i)(C) or
(l)(2)(ii)(B) of this section.
Alternative documents that show
work authorization are specified in 8
CFR 274a.2(b)(1)(v). Examples are a
United States passport (unexpired or
expired), a United States birth
certificate, or any of several documents
issued to lawful permanent resident
aliens or to nonimmigrants with work
authorization.
There may be other procedures a
particular employer could follow in
response to a no-match letter,
procedures that would be considered
reasonable by DHS and inconsistent
with a finding that the employer had
constructive knowledge that the
employee was an unauthorized alien.
But such a finding would depend on the
totality of relevant circumstances. An
employer that followed a procedure
other than the ‘‘safe-harbor’’ procedures
described in the regulation would face
the risk that DHS may not agree.
It is important that employers
understand that the proposed regulation
describes the meaning of constructive
knowledge and specifies ‘‘safe-harbor’’
procedures that employers could follow
to avoid the risk of being found to have
constructive knowledge that an
employee is not authorized to work in
the United States based on receipt of a
no-match letter. The regulation would
not preclude DHS from finding that an
employer had actual knowledge that an
employee was an unauthorized alien.
An employer with actual knowledge
that one of its employees is an
unauthorized alien could not avoid
liability by following the procedures
described in the proposed regulation.
The burden of proving actual knowledge
would, however, be on the government.
Further, DHS may find that the
employer had constructive notice from
other sources. Finally, it is important
that employers understand that the
resolution of discrepancies referenced
in a no-match letter, or other
information that an employee’s SSN
presented to an employer matches the
records for the employee held by the
SSA, does not, in and of itself,
demonstrate that the employee is
For example, an alien not authorized to
work in the United States may present
a fraudulent name and matching
fraudulent SSN, and this rule does not
address such fraud.
II. Comments and Responses
A. Authority to Promulgate the Rule
Several commenters suggested that
DHS does not have the authority to
adopt the proposed rule. Different
commenters suggested that DHS was
intruding on the authority of the SSA,
the Department of Justice (DOJ), or the
Internal Revenue Service (IRS). These
comments seem to indicate a lack of
understanding of the nature of the rule,
DHS’s role in employer sanctions, and
the relationship of authority among the
agencies. DOJ, the IRS, and SSA all were
involved in the promulgation of the
proposed rule.
DHS has the authority to investigate
and pursue sanctions against employers
who knowingly employ or continue to
employ unauthorized aliens or who do
not properly verify employees’
employment eligibility. Section 274A of
the INA, 8 U.S.C. 1324a, requires all
United States employers, agricultural
associations, agricultural employers,
farm labor contractors, or persons or
other entities who recruit or refer
persons for employment for a fee, to
verify the employment eligibility and
identity of all employees hired to work
in the United States. To comply with
the law, an employer, or a recruiter or
referrer for a fee, must complete an
Employment Eligibility Verification
form (Form I–9) for all employees,
including United States citizens. 8 CFR
274a.2. Forms I–9 are not routinely filed
with any government agency. Employers
are responsible for maintaining these
records, which ICE may request from
them. See 71 FR 34,510 (June 15, 2006).
DHS may conduct investigations for
violations of section 274A of the INA
either on its own initiative or in
response to third-party complaints that
have a reasonable probability of
validity. If DHS determines after
investigation that an employer has
violated section 274A of the INA by
knowingly employing unauthorized
aliens, DHS may issue and serve a
Warning Notice or may commence
administrative proceedings against the
employer by issuing and serving a
Notice of Intent to Fine (Form I–763).
See 8 CFR 274a.9(a)–(d). An employer
who wishes to contest the fine may
request a hearing before a DOJ
administrative law judge. See 8 CFR
274a.9(e); 28 CFR part 68.
DHS’s authority to investigate and
pursue sanctions against employers who
knowingly employ or continue to
employ unauthorized aliens necessarily
includes the authority to decide not to
pursue sanctions against employers who
follow the DHS-recommended
procedure. In essence, this final rule
limits DHS’s discretion to use an
employer’s receipt of a particular
written notice from SSA or DHS as
evidence of constructive knowledge for
those employers who follow the DHS
procedure. See, e.g., Lopez v. Davis, 531
U.S. 230, 240–41 (2001) (upholding
categorical limitation of discretion
through rulemaking). The rule does not
affect the authority of the SSA to issue
no-match letters, the authority of the
IRS to impose and collect taxes, or the
authority of DOJ to enforce the anti-
discrimination provisions of the INA or
adjudicate notices of intent to fine
employers.
DOJ also has an enforcement role in
the context of employer sanctions. In
addition to adjudicating Notices of
Intent to Fine, DOJ—through its Office
of Special Counsel for Immigration-
Related Unfair Employment Practices—
is responsible for enforcing the anti-
discrimination provisions of section
274B of the INA, 8 U.S.C. 1324b. See 28
CFR part 44. While charges of unfair
immigration-related employment
practices may be filed by any DHS
officer, they are primarily brought by
individuals who believe that they are
victims of discriminatory practices. See
28 CFR 44.300. Although individuals
generally bring charges on their own
behalf, DOJ and DHS may nevertheless
file such charges.
SSA, by contrast, does not have an
immigration enforcement role. Instead,
SSA collects employee earnings reports
from employers through IRS Wage and
Tax Statements (Forms W–2) in order to
properly administer Social Security
benefits. See 26 CFR 31.6051–2(a). SSA
receives over 250 million earnings
reports from employers each year. The
vast majority of these reports are
successfully matched with individual
earnings records, which are then used to
calculate future Social Security benefits,
such as retirement, disability, and
survivors’ benefits. Every year, however,
the SSA is unable to post some wage
reports to individual earnings records
because some employees’ reported
combinations of names and SSNs do not
match SSA records. As mentioned
earlier, there are many causes for such
a no-match, including clerical error and
name change. One cause is the
submission of information for an alien
who is not authorized to work in the
United States and is using a false SSN
or an SSN assigned to someone else. For
example, in 2002 the SSA was unable to
match almost 9 million wage reports,
representing $56 billion in earnings. At
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45615Federal Register / Vol. 72, No. 157 / Wednesday, August 15, 2007 / Rules and Regulations
the end of tax year 2003, the Earnings
Suspense File (ESF) contained
approximately 255 million wage reports,
representing $519.6 billion in earnings.
The ESF is an electronic holding file for
wage items reported on Forms W–2 that
cannot be matched to the earnings
records of individual workers. These
wage reports have accumulated since
the beginning of the program and date
back as far as 1936. One method SSA
relies on to resolve these mismatches is
issuing employers an ‘‘Employer
Correction Request’’—more commonly
known as an SSA employer ‘‘no-match
letter.’’
One commenter suggested that DHS
lacks authority to promulgate
regulations related to Form I–9
verification and acceptable documents,
claiming that this authority is vested in
the Attorney General and the DOJ. This
comment misinterprets the division of
authority under the Homeland Security
Act of 2002 (HSA), Public Law 107–296,
116 Stat. 2135 (Nov. 25, 2002). The HSA
abolished the Immigration and
Naturalization Service (INS) and
transferred its functions to DHS,
including those functions relating to
employer sanctions. See HSA sections
441, 471, 6 U.S.C. 251, 291; INA section
103(a)(1), 8 U.S.C. 1103(a)(1). The HSA
required a division of regulatory
authority between DOJ and the newly
created DHS, commensurate with the
transfer of functions of the former INS
from DOJ to DHS. That transfer included
the functions of the employment
verification system and the regulations
for the administration of that system.
See 68 FR 10,353 (March 5, 2003).
Some commenters mistakenly
believed that this rule results in changes
to the employment verification system
that would require congressional
notification. See INA section 274A(d), 8
U.S.C. 1324a(d). This rule merely
clarifies current standards related to
constructive knowledge. It does not
change the verification system, so the
notification requirements are
inapplicable. Nor does this rule affect
the EEV Program, so any limitations that
apply to changes in the EEV Program do
not apply to this rule.
Other commenters suggested that DHS
lacks authority to regulate SSA notices.
This final rule only addresses how DHS
will treat an employer’s knowledge of
the name and SSN discrepancy from a
written notice from the SSA, such as an
‘‘Employer Correction Request’’ or no-
match notice, in investigating the
unlawful hiring or continued
employment of unauthorized aliens.
SSA and DHS, as coordinating agencies
within the Executive Branch, are each
taking steps to improve the no-match
process and the public’s understanding
of that no-match process in the
immigration context.
Finally, one commenter suggested
that this rule grants DHS access to tax
information covered by section 6103 of
the Internal Revenue Code of 1986, 26
U.S.C. 6103. Under section 6103, the
IRS, and any other official or employee
who acquires the information from the
IRS in the course of official duties, may
not provide tax returns or tax
information to outside agencies or
others except under certain
circumstances. The same information,
however, in the hands of an individual
employer is not subject to any
restrictions by section 6103. Tax
information in the hands of the
originator of that information (the
employer) is frequently and
unquestionably subject to demand in
criminal, civil, and regulatory matters
by federal, state, and local law
enforcement officials. This rule does not
provide DHS with access to any tax
information governed by section 6103 of
the Internal Revenue Code. This rule
affects only DHS consideration of SSA
no-match letters sent by the SSA to an
employer and in the hands of the
employer during an investigation of the
employer’s records, and that letter in the
hands of the recipient does not qualify
as tax information covered by section
6103.
B. Changes in Legislation
Many commenters argued that a
regulatory change is unwise in light of
the congressional debate over
comprehensive immigration reform. As
the President has indicated, the
Administration supports comprehensive
immigration reform that will secure the
border, strengthen enforcement of
immigration laws in the nation’s
interior, and create a temporary worker
program, address the millions of
undocumented immigrants in the
country without providing amnesty, and
promote the assimilation of newcomers.
DHS believes that worksite enforcement
is a critical component of
comprehensive immigration reform, and
supports mandating an employment
eligibility verification system in a
manner that is not overly burdensome
for American employers. Accordingly,
DHS supports legislative provisions that
strengthen document verification and
related requirements, and that provide a
safe harbor for those employers who in
good faith comply with the law.
Although DHS is working with
Congress to enact such legislation, DHS
cannot predict when Congress will pass
such legislation. The further
development of regulations under
existing law is quite common and
regulatory action continues when
Congress is considering legislative
proposals. In the interim, however, this
rule will provide employers with the
information they need to respond to
receipt of the no-match letters.
Others argue that the regulation
should wait because it may prove to be
inconsistent with, or superfluous to,
future legislation, and that this might
cause confusion on the part of
employers. DHS believes that there is an
immediate benefit to providing this rule
change. If future legislation requires an
adjustment, the regulation can be
amended.
C. Constructive Knowledge
A number of commenters suggested
that the proposed rule impermissibly
expands the concept of constructive
knowledge. DHS disagrees.
The current regulations provide that
‘‘The term knowing includes not only
actual knowledge but also knowledge
which may fairly be inferred through
notice of certain facts and circumstances
which would lead a person, through the
exercise of reasonable care, to know
about a certain condition.’’ 8 CFR
274a.1(l)(1). This rule will revise the
structure of the definition to separate
references to actual knowledge from
constructive knowledge, but it will
retain the same definition of
constructive knowledge: ‘‘[c]onstructive
knowledge is knowledge that may fairly
be inferred through notice of certain
facts and circumstances that would lead
a person, through the exercise of
reasonable care, to know about a certain
condition.’’
This is consistent with the common
definition that ‘‘constructive
knowledge’’ is ‘‘[k]nowledge that one
using reasonable care or diligence
should have, and therefore that is
attributed by law to a given person.’’
Black’s Law Dictionary (8th ed. 2004).
The use of the term and its meaning is
common, although the application to
specific facts is subject to interpretation.
See, e.g., Metro-Goldwyn-Mayer Studios
Inc. v. Grokster, Ltd., 545 U.S. 913
(2005) (company’s liability for product
that facilitates copyright infringement);
Harris Trust and Sav. Bank v. Salomon
Smith Barney, Inc., 530 U.S. 238 (2000)
(transferee’s liability under ERISA for
prohibited transaction); Faragher v. City
of Boca Raton, 524 U.S. 775 (1998)
(employer’s vicarious liability for sexual
harassment in workplace). DHS is
including an illustrative definition in
the regulations to more clearly
distinguish ‘‘constructive notice’’ from
actual notice without changing the
meaning of either term.
32

Courts have long held that
constructive knowledge is applicable in
situations involving employment of
unauthorized aliens. In Mester
Manufacturing v. INS, 879 F.2d 561, 566
(9th Cir. 1989), the INS notified an
employer that immigration status
documents presented by certain
employees for completion of Forms I–9
were fake, yet the employer took no
action. Analogizing to the criminal law,
the Ninth Circuit held that the INS
demonstrated Mester had knowledge
because Mester ‘‘failed to take
appropriate corrective action’’ after
‘‘receiv[ing] specific information that
several of his employees were likely to
be unauthorized.’’ Id. at 566–67. The
Ninth Circuit invoked constructive
knowledge again in New El Rey Sausage
Co. v. INS, 925 F.2d 1153, 1158 (9th Cir.
1991), in which it pointed out that
‘‘employers, far from being allowed to
employ anyone except those whom the
government had shown to be
unauthorized, have an affirmative duty
to determine that their employees are
authorized.’’
A number of commenters have argued
that the present rule impermissibly
expands the reach of constructive
knowledge, citing Collins Food Int’l v.
INS, 948 F.2d 549 (9th Cir. 1991). In
Collins Food, the Ninth Circuit held that
a finding of constructive knowledge
could not be based on (1) The
employer’s extending an offer of
employment prior to conducting a Form
I–9 verification, and (2) the employer’s
accepting a Social Security card as
evidence of employment authorization
when the back of the card did not match
the Social Security card pictured in the
INS Handbook for Employers. Id. at 552,
554. In doing so, the court applied the
doctrines set out in Mester and New El
Rey Sausage but cautioned against an
expansive application of constructive
knowledge:
[The Immigration Reform and Control Act
of 1986], as we have pointed out, is delicately
balanced to serve the goal of preventing
unauthorized alien employment while
avoiding discrimination against citizens and
authorized aliens. The doctrine of
constructive knowledge has great potential to
upset that balance, and it should not be
expansively applied.
948 F.2d 554–55.
Some commenters have argued that
Collins Food limits findings of
constructive knowledge to situations in
which employers have been explicitly
warned by DHS that an employee may
be an unauthorized alien. Thus, they
suggest, DHS is impermissibly
expanding constructive knowledge by
including receipt of written notice from
SSA as an example of a situation that
may lead to a finding of constructive
knowledge.
This is an incorrect reading of Collins
Food. Indeed, Collins Food
distinguished Mester and New El Rey
Sausage precisely because ‘‘Collins
Food did not have the kind of positive
information that the INS had provided
in Mester and New El Rey Sausage.’’ 948
F.2d at 555. Nothing in Collins Food—
or any other case cited by the
commenters—suggests that such
‘‘positive information’’ indicating
certain employees may be unauthorized
aliens must come from DHS and not
from SSA.
Additionally, these comments do not
distinguish between an affirmative
obligation to resolve the issues raised by
the no-match letters and the ‘‘safe
harbor’’ from use of the no-match letter
as part of a determination of
constructive knowledge. This final rule
does not require an employer to take
any particular action; the rule simply
provides a clear method for employers
to exercise reasonable care in addressing
‘‘no-match’’ letters.
Nor does this rule require that
employers avail themselves of the safe-
harbor procedure. As many commenters
point out, receipt of written notice from
DHS resulting from a Form I–9 audit
creates a duty to investigate, whereas
receipt of an SSA no-match letter may
create such a duty depending on the
totality of the circumstances. DHS
acknowledges that an SSA no-match
letter by itself does not impart
knowledge that the identified
employees are unauthorized aliens.
DHS is aware that SSA no-matches
may occur due to a name change or
typographical error. In some situations a
listed SSN is facially suspect, such as
when the first three numbers of an
employee’s claimed SSN are ‘‘000,’’ or
are in ‘‘800’’ or ‘‘900’’ series, which are
not used. DHS believes that the initial
submission of Form I–9 with facially
incorrect information is problematic,
and that this type of information cannot
be created by an innocent transcription
or typographic error. A letter from DHS
or SSA stating that such a number has
been checked and does not match
agency records reinforces the suspect
nature of the original information. In
other situations, an SSA no-match letter
sent to the employer may be the first
indication of a suspect number, and
when combined with other evidence
known to the employer, ‘‘would lead a
person, through the exercise of
reasonable care, to know’’ that the
employee is not authorized to work. 8
CFR 274a.1(l)(1).
A number of commenters have
suggested that SSA no-match letters
issued in the past claim to make no
statement about an individual’s
immigration status, and employers are
confused about their obligations under
the civil rights laws. To the extent
employers were confused, this rule
should provide clear guidance.
One commenter requested that DHS
clarify whether employers who follow
the procedures herein will be protected
from all claims of constructive
knowledge, or just claims of
constructive knowledge based on the
letters for which the employers followed
the safe-harbor procedure. DHS has
amended the language in the final rule
at paragraphs (l)(2)(i) and (l)(2)(ii) to
clarify that (1) An employer who
follows the safe-harbor procedure will
be considered to have taken reasonable
steps in response to the notice, and (2)
the employer’s receipt of the written
notice will therefore not be used as
evidence of constructive knowledge. If,
in the totality of the circumstances,
other independent evidence exists to
prove that an employer has constructive
knowledge, the employer may still face
liability. This could be unusual,
however, in the situation where an
employer carefully follows the safe-
harbor procedures provided in this
regulation and has no information
suggesting that the employee is using
another person’s identity. Also, as noted
in the proposed rule, this safe-harbor
procedure does not protect an employer
who has actual, as opposed to
constructive, knowledge that an
employee is an unauthorized alien.
D. Fourteen-Day and Sixty-Day Time
Frames
Several commenters suggested that
the fourteen calendar-day time frame in
the proposed rule was insufficient for
employers to review their records to
determine if a typographical or other
error caused the no-match, correct their
records and verify the corrected
information to attempt to resolve a
discrepancy in an SSA letter or a
question raised in a DHS letter. The
commenters proposed a range of
alternatives, from fifteen business days
to one hundred and twenty days. After
careful consideration, DHS is extending
the initial fourteen-day time frame to
thirty calendar days. 8 CFR 101(h). DHS
believes that this provides sufficient
time for employers to take certain
reasonable steps to resolve the problem.
Many commenters also suggested that
the sixty-day time frame in the proposed
rule for an employee to resolve the no-
match with DHS and SSA was
insufficient. Most argued for an
extension by claiming that SSA would
be unable to resolve discrepancies
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I 9 Compliance Handout

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I 9 Compliance Handout