Department Of Homeland Security Issues New Regulations To Clarify I-9 Procedures For Employers Who Receive Notice Of Discrepancies In Employee Documents

New regulations clarifying I-9 procedures for employers receiving notice of discrepancies in employee documents are scheduled to go into effect on September 14, 2007, unless delayed by Congress.  These regulations, issued by the Department of Homeland Security, do not impose any new duties upon employers.  The new regulations instead provide guidance to employers receiving letters from either the Department of Homeland Security or the Social Security Administration stating that there is a discrepancy in a worker's I-9 documents.  These letters are commonly called "No-Match" letters because they generally indicate that there is a mismatch between the employee's name and the social security number provided by the employee. 

The new regulations give employers who receive No-Match letters safe harbor procedures to follow with time lines for each step.  These steps involve reverifying the employee's authorization to work and checking to ensure the problem was not a simple transcription error caused by the employer.  According to the regulation, by following these procedures, the Department of Homeland Security will not use the No-Match letter as part of an allegation that the employer had "constructive knowledge" that an employee was an unauthorized alien.  This does not apply, however, to employers who have actual knowledge that an employee is an unauthorized alien.

It is also important that employers not administer Form I-9 verifications on a discriminatory basis, for example, based on an employee's accent or country of origin.  Employers should apply the new regulations on a uniform basis to all employees who are the subject of No-Match letters.

If you receive a No-Match letter or would like information as to the specific steps to take in case of such a situation, please contact an attorney in Pedersen & Houpt's Employment Law Practice Group for further details.

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