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The Department of Homeland Security (DHS) has issued a new rule that gives employers guidance when the government is unable to verify a worker's legal status.

The rule deals with "no-match letters," which tell employers that the name and Social Security number submitted for an employee does not match Social Security Administration (SSA) records or the immigration–status or employment-authorization documentation is not consistent with DHS records.

The rule was published June 14 and became effective immediately as an interim rule that is subject to change after public comments are considered. In addition to reviewing the legal obligations of an employer, the rule describes "safe-harbor" procedures employers can take to protect themselves from legal action after receiving a no-match letter.

Under the Immigration and Nationality Act, it is illegal for employers to continue to employ an individual worker knowing that person is not authorized.

"In this new rule, DHS clearly states that the receipt of a no-match letter from the SSA or the DHS is considered 'constructive knowledge' that an employer is employing an unauthorized alien," said John Wargowsky, OFBF’s director of labor services.

According to DHS, out of 250 million wage reports the SSA receives each year, as many as 10 percent belong to employees whose names don’t match their Social Security numbers.

Employers must take certain steps to obtain safe-harbor after receiving a no-match letter, including attempting to resolve the issue and informing the relevant agency. If the issue is not resolved within 60 days, the employer must complete a new I-9 employment form for the worker. The form cannot use documents containing the Social Security number or alien number in question from no-match letters, and the documents used to verify identity must contain a photo.

"Due to the timing of the guidelines in the safe-harbor rule, it appears that seasonal employers, depending on their seasonal employment dates and when the no-match letter is actually received, may not be able to use the safe-harbor procedure," Wargowsky said.

Wargowsky said if the issue is not resolved, the employer must take action to terminate the employee or face the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien.

"This rule is not the real solution to stopping illegal immigration; comprehensive immigration reform legislation is," he said.

To read the rule in its entirety, visit www.ofbf.org and click on Featured Links.