November 28, 2007

Employer Beware: Immigration Update


Fall 2007

November 2007 has seen a number of significant events that affect all employers. First, the Social Security Administration ("SSA") announced that it would not send out No Match letters based on tax year 2006 information. Second, the Department of Homeland Security ("DHS") filed a motion to stay proceedings in the SSA No Match letter lawsuit, which was filed by a consortium of labor and industry groups to challenge the use of No Match letters to help enforce DHS's new immigration rules. Finally, DHS published the amended Form I-9 regulation in the Federal Register.

SSA No Match Letters

Each year since 1979, the SSA has mailed out No Match letters, first to individuals and then in 1984, to employers. The purpose of the letters was to obtain information to accurately credit social security payments to individual accounts. SSA No Match letters for 2006 were delayed due to DHS rulemaking that would have used the letters as a means to enforce immigration laws. See our prior alert.

SSA has now confirmed that they will not send out No Match letters based on tax year 2006 information. But employers should not relax their procedures in reviewing the employment eligibility of new employees as a result of this action by the SSA. Remember, DHS, through Immigration and Customs Enforcement ("ICE"), will still punish employers who employ undocumented workers.

No Match Letter Lawsuit

On Friday, November 23, 2007, DHS filed a motion and proposed order requesting a stay of action in the No Match letter lawsuit while DHS undertakes new rulemaking. The plaintiffs oppose the motion and proposed order. A hearing has been scheduled to hear the motion on December 28, 2007.

In support of the motion, DHS stated that it "intends to conduct additional rulemaking procedures to address the issues raised by the Court. This will include preparing a Regulatory Flexibility Act analysis." DHS stated that they expect to complete this rulemaking process by March 2008 and at that time would seek to vacate the preliminary injunction presently in place.

The decision to undertake new rulemaking is not a surprise and probably is the fastest way for DHS to achieve its goal of using SSA No Match letters for enforcement purposes.

Again, employers should review their I-9 processes, including a periodic audit of I-9records, for compliance with the law.

Amended Form I-9

On November 7, 2007, the U.S. Citizenship and Immigration Services ("USCIS"), a department of DHS, released an amended Employment Eligibility Verification Form ("I-9").The Form I-9 is used by employers to verify the identity and eligibility of employees to work in the U.S.

The amended I-9 was effective on release and is the only valid version. On November 26, 2007, DHS published the regulation with amended Form I-9 in the Federal Register. Employers now have a 30-day transition period to implement the use of the amended I-9.The new form is required for new hires and reverifications only — employers need not complete the new form for existing employees. Employers not using the amended I-9 will be subject to penalties beginning on or after December 26, 2007. ICE will enforce the regulation. The amended I-9 has the following notation in the lower right-hand corner: "Form I-9 (Rev. 06/05/07) N." All other form I-9s are no longer valid. Employers should also note that the Spanish version I-9 is only for use in Puerto Rico.

Penalties for failing to use the proper I-9 and completing it properly range from $110.00 to $1,100.00 per violation. ICE will evaluate the following criteria in setting the actual penalty amount:

  1. The size of the employer;
  2. The good faith of the employer;
  3. The seriousness of the violation;
  4. Whether the employee was an undocumented alien; and
  5. The history of previous violations of the employer.

The amended I-9 and the "Handbook for Employers, Instructions for Completing the FormI-9" are available at The Handbook also includes examples of the documents that are acceptable for identity and eligibility purposes. Employers should take the opportunity now to conduct training on the proper procedures for completing the I-9 to ensure compliance with the law.

For more information on this topic, please contact or call (888) 598-7070.


Back to Top