The Department of Homeland Security (DHS) amended old regulations to propose new procedures for employers when:
(1) The employer receives written notice from the Social Security Administration (SSA) that the combination of name and social security account number submitted to SSA for an employee does not match agency records; or
(2) the employer receives written notice from the DHS that the immigration-status or employment-authorization documentation presented or referenced by the employee in completing Form I-9 was not assigned to the employee according to DHS records.
Under the new rules, entitled "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter", employers that receive the letters described above but fail to subsequently take reasonable action in a case where the employee in question is actually an unauthorized alien could be found to have had "constructive knowledge" of that fact. "Constructive knowledge" is a concept in criminal law which means that a corporation or individual can be held responsible for knowing everything that the different people and branches under him know.
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a complaint against the DHS, Immigrations and Customs Enforcement (ICE), and SSA arguing that the new rule is in conflict with statute and that implementation of the rule exceeds the authority given to the DHS and SSA. While this case is still in progress, the judge has issued a preliminary injunction banning the defendants (DHS, ICE, and SSA) from implementing the new rule.
SourcesSafe-Harbor Procedures for Employers Who Receive a No-Match LetterComplaint in AFL-CIO v. Dep. of Homeland Security, Immigration and Customs Enforcement, and Social Security AdministrationCourt Issues Preliminary Injunction Against New Rule