Immigration and Customs Enforcement Update

May 04, 2009

Immigration and Customs Enforcement or “ICE,” the enforcement arm of the Department of Homeland Security, has announced plans to continue its focus on criminal prosecution of those employers which knowingly employ workers who are not authorized to work in the United States.  See ICE Worksite Enforcement Fact Sheet and Overview on this topic published last week.
  
Employers should not take these matters lightly.  As any employer can see by reading the newspaper, ICE is serious about this issue and the focus on employer compliance has not gone away with the new administration.  To this point, most enforcement actions have not surprisingly involved employers with high concentrations of foreign workers.  However, no employers are immune from such enforcement actions by ICE.

Employers are prohibited from knowingly employing workers who are not authorized to work in the U.S.  Knowledge that an employee is not authorized to work can be either actual (he told me he was illegal) or “constructive” (knowledge is imputed to the employer based on the facts).  Regarding constructive knowledge, employers should carefully watch the so called “no-match” rule which is currently tied up in the federal courts. 

In essence, the pending rule states that an employer can have constructive knowledge that a worker is not authorized to work in the U.S. following receipt of a letter from Social Security stating that the Social Security Number provided for the worker on the employer’s W-2 does not match Social Security records.  Employers can take certain steps within specified time periods to benefit from a safe harbor provision in the rule.  These steps include possible termination of employment if the number discrepancy cannot be straightened out within 93 days.  Although, as noted, the “no-match” rule is currently tied up in litigation in federal court, employers should not ignore these “no-match” letters.

This document was prepared by Matthew S. Raynes. For further information, contact Matthew S. Raynes at
mraynes@eatonpeabody.com.

This paper is provided as general information, and is not a substitute for legal or other professional advice.