Last week, the U.S. Immigration and Customs Enforcement ("ICE") agency issued amended regulations regarding the unlawful hiring or continued employment of unauthorized aliens. The amended regulations address three issues: first, the addition of two more examples to the definition of "knowing," when determining whether an employer had constructive knowledge as to whether the individual was an unauthorized alien; second, the legal obligations an employer has to respond to no-match letters from the Social Security Administration ("SSA") or letters regarding employment verification forms from the Department of Homeland Security ("DHS"); and third, the "safe-harbor" procedures that the employer can follow in response to such letters from the SSA or DHS. If an employer follows the safe-harbor provisions contained in these amended regulations, the DHS will not use the written notice as any part of an allegation that the employer had constructive knowledge that its employee was an unauthorized alien.

The Immigration and Nationality Act (INA), 8 USC §1324a(a)(2), provides that:

"It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment."

The regulations to this statute provide a definition as to the term knowing, as follows:

"The term knowing includes having actual or constructive knowledge. Constructive knowledge is knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition."

The definition continues by providing examples of situations where an employer may have constructive knowledge that an employee is unauthorized. These includes situations where:

(1) The employer fails to complete or improperly completes the Form I-9;
(2) The employer acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf; or
(3) The employer fails to take reasonable steps after receiving information indicating that the employee may be an unauthorized alien. That information may be:
	(a) an employee's request that the employer file a labor certification or employment-based visa petition on behalf of the employee;
	(b) an employer's receipt of a social security no-match letter;
	(c) an employer's receipt of a letter from the DHS indicating that the immigration status document or the employment authorization document used by the employee is assigned to another person or is not assigned to any person.

The amended regulations provide that an employer must take "reasonable steps" after receiving information from the SSA or the DHS indicating that an employee may be an alien. If these steps are followed, the DHS will not use the written notice as any part of an allegation that the employer had constructive knowledge that its employee was an unauthorized alien. The steps include the following:

Step One:      The employer must check its records to determine whether the discrepancy results from a clerical error in its own records or in its communication to the SSA or DHS. If there is such an error, the employer must correct its records, inform the relevant agencies, and verify that the name and number, as corrected, match agency records. The employer should make a record of the manner, date and time of its verification with the SSA or the DHS and keep this information with the employee's Form I-9. Step One must be completed within 30 days of receipt of the written notice. If there is no error, the employer must complete Step 2.

Step Two:      If there is no discrepancy in the employer's records or in its communications with the SSA or the DHS, the employer must request that the employee confirm that the employer's records are correct. If they are not correct, the employer must correct its records, inform the relevant agencies, and verify that the name and number, as corrected, match agency records. Once again, the employer should make a record of the manner, date, and time of its verification with the SSA or the DHS and keep this information with the employee's Form I-9. If the employee confirms that the employer's records are correct, the employer must request that the employee resolve the discrepancy with the SSA or the DHS. The employer must also advise the employee of the date of the written notice and that the discrepancy must be resolved by the employee within 90 days of that date. The employer's obligations in Step Two must be completed within 30 days of receipt of the written notice.

Step Three:      Within 90 days of the employer's receipt of the written notice, the employer must verify with the SSA or the DHS that the employer's information matches the SSA's or DHS's records and that the documentation is properly assigned to that employee. If the employer is unable to verify this information, the employer must reverify the employee's identity and employment authorization, whichever is at issue, within 3 days (or 93 days from receipt of written notice). The procedure for reverifying the employee at this stage requires the employer to complete a new Form I-9 for the employee, using the same procedures as if the employee were newly hired. The employee must complete Section 1 and the employer must complete Section 2 of the new Form I-9.

When completing Section 2, the employer must request the employee to present a document that contains a photograph in order to establish identity or both identity and employment authorization, whichever is at issue. Step Three must be completed within the 93-day period following the employer's receipt of written notice.

Please note that no document containing the same information that is in question by the agency and no receipt for an application for a replacement document shall be used to establish employment authorization, identity, or both. In addition, an employer may not use an employee's foreign appearance or accent to infer that the employee is unauthorized to work. The employer must retain the new Form I-9 with the prior Form I-9.

If the employer is unable to verify the employee's identity, work authorization, or both, then the employer must either terminate the employee or face the risk of a finding by DHS that the employer had constructive knowledge that the employee was an unauthorized alien and that the employer may be in violation of the Immigration and Nationality Act.

Please contact any member of Schiff Hardin's Labor and Employment Group for additional information about the amended regulations or related topics.