Thread: GA:Regulation forces employers to verify worker's status

Positive identification: New regulation would force employers to verify worker's legal status

By HARRIS BLACKWOOD
The Times
GAINESVILLE


Making a mistake in reporting someone's name and Social Security number to the government is not an uncommon occurrence.

Someone can transpose a number, or the name reported may be a nickname or a maiden name that is different from what the Social Security administration has on file.

There is also the possibility that the person who gave the number does not have the proper documentation to work in the United States, and the Social Security number is a fake.

Previously, any of those events would generate what is called a "no-match" letter, a non-threatening warning from the Social Security Administration.

But a proposed federal regulation that has been put on hold by a U.S. District Court judge in California would give the U.S. Immigrations and Customs Enforcement agency access to the letters and the power of enforcement if an employer has knowingly hired an illegal worker.

Madeline S. Wirt, a partner in the Gainesville law firm of Whelchel, Dunlap, Jarrard and Walker, specializes in employment and immigration law.

Though the enforcement of the new federal regulation is on hold, Wirt is telling her clients to heed it regardless.

"It has always been the law that if you have knowledge that an employee is not authorized to work, there are civil and criminal penalties associated with that," Wirt said. "I'm advising my clients to act as if (the regulation) is the law to protect themselves."

She said the previous no-match letter did not mention any obligations related to immigration compliance.

"This letter does not imply that you or your employee intentionally gave the government wrong information ... (n)or does it make any statements about an employee's immigration status," the letter states.

The new no-match letter would not only include immigration law obligations, but would include a separate letter from the Department of Homeland Security on how the employer should respond.

"The idea of Homeland Security pulling in the Social Security Administration as a joint group to help enforce this is pretty radical," Wirt said.

The new regulation also expands the definition of "constructive knowledge" related to employment of undocumented workers. Constructive knowledge is the idea that the employer should have known the employee was illegal based on the circumstances.

The new regulation includes as constructive knowledge the failure to take reasonable steps to address an employee's request for the employer's sponsorship of the employee for a labor certification or visa petition; receipt of a no-match letter from the SSA; and receipt of a notice from Homeland Security (usually after an I-9 audit) that the employee's employment authorization documents presented in connection with completion of the I-9 form do not match Homeland Security records.

I-9 is the government form on which required documents for employment are recorded by the employer.

The new regulations are in addition to a major enforcement effort announced earlier this year by federal officials.

On Aug. 28, Immigrations and Customs Enforcement officers executed search warrants and later arrested 160 workers at a poultry processing and packaging facility in Fairfield, Ohio. At the same time, the agency executed warrants at the Chicago headquarters of Koch Foods, which owns the Fairfield plant as well as operations in Gainesville and Cumming.

"Unlawful employment is one of the key magnets drawing illegal aliens across our borders," said Julie Myers, Assistant Secretary of Homeland Security for ICE in a statement released after the raid.

Myers pledged to use new tools including access to the no-match letters.

Wirt is encouraging her clients to conduct their own audit of I-9 records. She also has advised them to keep those records separate from regular employee files that contain information to which the government is not guaranteed access.

"We're also advising clients to consider voluntary participating in the Basic Pilot program," she said.

Basic Pilot is an Internet-based system that provides employers with an automated link to the Social Security database providing an immediate verification that the name and the number match.

"There is a huge industry of counterfeit documents out there and they look very real," Wirt said. "That is how an employer would be in the position of doing everything they're supposed to do by getting correct documents, which look fine on their face, and at some point getting a no-match letter."

The attorney said employers should take steps to see that any action taken by the employer applies to all workers to avoid possible liability under federal and state laws prohibiting discrimination.

Contact: hblackwood@gainesvilletimes.com, (770) 718-3423

Originally published Sunday, September 16, 2007



http://www.gainesvilletimes.com/news/st ... 7167.shtml

"The idea of Homeland Security pulling in the Social Security Administration as a joint group to help enforce this is pretty radical," Wirt said.

SINCE WHEN IS COMMON SENSE RADICAL?

Originally Posted by Faye

"The idea of Homeland Security pulling in the Social Security Administration as a joint group to help enforce this is pretty radical," Wirt said.

SINCE WHEN IS COMMON SENSE RADICAL?

The 9-11 Commission identified the failure of communication among the various federal agencies as one of the primary causes that allowed the catastrophe to happen.

We must remember that sending the no-match letters is not new; they have been doing that for years. The group is objecting to the announcement that there will now be actual enforcement of the law.
They do, however, have recent precedent on their side. They have come to expect that the U.S. will enforce no law against illegal immigrants. How dare we now suggest that this one will be the exception!