Today’s announcement by the Department of
Homeland Security (DHS) calls for the nation’s
employers to police for undocumented workers and moves employers to the
forefront of the debate on illegal immigration. Under the new
regulations, DHS will use the Social Security Administration’s
(SSA) No-Match Letter program to drive employers to resolve social
security number (SSN) and W-2 discrepancies or face criminal and civil
proceedings.
“It’s estimated that
800,000 employers could receive notices; representing a fundamental
shift in how businesses are forced to handle the issue of illegal
workers. The No-Match program is an enormous step in increased workplace
raids looking for undocumented workers,” said
Charles Foster, founder, Tindall & Foster, P.C. “In
late February, the Department of Justice announced significantly higher
civil fines for immigration violations.”
The No-Match program was started by the SSA in 1979 as a way to check
earnings records by comparing employees against the SSNs they filed.
Since 1994, employers have received No-Match Letters when a SSN and
W-2 discrepancy was found, including typographical errors, unreported
name changes, inaccurate or incomplete employer records or misuse of a
SSN. At that point, the employer was obligated to inform the employee of
the discrepancy and it was the worker’s
responsibility to clear the issue.
Under the new regulations, when employers receive No-Match Letters, they
are on notice that the employee in question may not be authorized to
work in the U.S. and required to resolve the discrepancy. In the case of
a clerical error, the employer must work with the SSA to fix the error.
If the discrepancy cannot be resolved, employers face criminal and civil
proceedings if the employee continues to work on behalf of the employer.
In August of 2007, DHS announced the use of the SSA’s
No-Match Letter program as a way to screen for illegal workers. In
October, U.S. District Court for the Northern District of California
issued a procedural injunction for not offering a public comment period
for the program. The following month, the court stayed proceedings in
order to allow DHS to correct and reissue the regulation. Today’s
announcement includes a 30-day period for public comment.
Additional Resources
Currently, employers can use the E-Verify database to check the legal
status of workers. Government officials estimate that seven percent of
E-Verify queries are found to be “non-confirmed.”
Approximately 12 million illegal immigrants are living in the U.S. and
400,000 to 700,000 enter each year. Three-quarters are believed to be
working with false SSNs.
February 22 – The Department of Justice
announced higher civil fines against employers for immigration
violations. Effective March 27, the maximum penalty for first-time
violations increases to $3,200 from $2,200 and the maximum penalty for
multiple violations increases to $16,000 from $11,000.
About Tindall & Foster
A national leader in family law and emigration, immigration and related
international law solutions since 1973, Tindall & Foster has built a
reputation on experience, sound judgment and confidence. Headquartered
in Houston, with a branch in Austin, the firm is committed to providing
high-quality legal services to individuals and businesses in a
professional and ethical manner.
Proactively meeting the challenges of U.S. immigration law and policy,
Tindall & Foster is considered one of the nation’s
foremost emigration- and immigration-related litigation and strategy
firms. Tindall & Foster works with leading regional and Fortune 1,000
companies to minimize the likelihood and impact of immigration raids.
More information can be found at www.TindallFoster.com.
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