New proposed rule from Homeland Security will rescind the controversial no-match rule
One of G.W. Bush’s controversial acts as president was issuing the no-match rule. When employers pay social security taxes, the Social Security Administration (SSA) allocates a certain amount to each employee based on that employee’s social security number. All is well and good when the employer provided numbers match the numbers on file with the SSA. When the numbers don’t match, the SSA sends an aptly named no-match letter. The Bush administration’s no-match rule would have required theDepartment of Homeland Security (DHS) to send its own letter to employers along with the no-match letters from the SSA. The DHS letters, rather than simply stating that the numbers didn’t match, would contain a threat to fix the problem or face liability. As a practical matter, most employers receiving such a letter would opt to terminate the employee at issue rather than face liability.
The real problem with this rule is that just because an employee’s social security number, provided on an I-9 card for example, does not match the number on file with the SSA does not mean the employee is an illegal alien. The SSA’s record keeping is not perfect and the no-match might not be the employee’s fault. Moreover, typos are not uncommon in this context and many no-match situations are the result of accidentally switching a single number. In other words, a no-match does not equal an illegal worker. Terminating employment solely on the basis of receiving a no-match letter could expose employers to liability for wrongful termination.
The DHS has a deadline of September 30, 2009 to rescind the no-match rule. If it rescinds the rule before that date it will not run afoul of the bill recently passed in the Senate prohibiting using any part of next year’s appropriated homeland security funds to rescind the rule. The DHS has indicated that it intends to rescind the rule and focus on assuring employer compliance through programs such as E-Verify.
The bottom line for employers - compliance with immigration laws is just as important as ever, but if the rule is rescinded a no-match letter from the SSA should result in a discussion with the employee, perhaps obtaining another copy of their social security card and checking their I-9 form.
ICE Targets Employers by Launching I-9 Audit Program
Implementing a new audit initiative, the U.S. Immigration and Customs Enforcement Service (ICE) has served Notices of Inspection on 652 businesses nationwide. The notices inform employers that ICE will be inspecting their I-9's and other employment records to ascertain whether the employers are in compliance with federal immigration laws and regulations.
The Obama administration appears to be taking a new approach to immigration law compliance by focusing its enforcement activities on employers. Under the Bush administration, ICE was known for sending armed agents into workplaces to round up employees suspected of working illegally. According to this press release issued by ICE, the new strategy is to dedicate resources to auditing and investigating employers in order to reduce the demand for illegal employment .
The 652 Notices of Inspection served last week exceed the total number of notices that ICE served in all of 2008. It appears that these notices are just the first wave of employer audits. In light of ICE's increased auditing activities, now is the time to conduct your own internal audit and ensure that you have proper immigration compliance measures in place.
New Form I-9 Available For Download
Finally - the new Form I-9 is here! Click here to download the new Form I-9. Note: the new form is for use only on or after April 3, 2009; until then, keep using the current Form I-9.
What's the Form I-9 you ask, and what's all the fuss? All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. The list of acceptable documents can be found on page 4 of the forms.
New W-4 Forms Available; No New Form I-9 Yet...
New year, new forms: The Internal Revenue Service has released new W-4 Forms for 2009, and we have them for you right here! Just click below to download:
A 2009 Spanish version is pending approval, and we'll post it when it is available.
As previously reported here at the World of Work, employers will be required to adopt the new Form I-9 (Verification of Employment Eligibility) by February 2, 2009. We'd love to give you a link to download it, but guess what: it's not available yet. We'll keep watching and post it here as soon as it's released.
Immigration: More Changes to Form I-9 On The Way
U.S. Citizenship and Immigration Services (USCIS) last month submitted an interim final rule intended to streamline the Employment Eligibility Verification (Form I-9) process. Click here to read the USCIS' Press Release on the interim final rule.
One result of this new rule will be a new Form I-9, which will be made available sometime in the next two months; until then, continue to use the current Form I-9. Once the new I-9 is available, we'll post it here on the World of Work. Among other changes, the new form will narrow the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. The revised Form will also include revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.
Remember: employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. For more information, check out the USCIS' information website in the Form I-9.
New I-9 Form Now Available
A new I-9 form is now available from the U.S. Citizenship and Immigration Services. What's changed, you might ask? Good question. Nothing substantive, merely the expiration date. Ironically, the Paperwork Reduction Act requires government forms to carry an expiration date, and because the old I-9 form expires June 30, 2008, the USCIS has to publish a new one. Still using the old form? Don't worry - using the new one won't be mandatory until 30 days after appearing in the Federal Register (and this hasn't even happened yet), but you can start using the new form now if you want to.
The last substantive changes to the I-9 were made in 2007. If you're interested, you can read the USCIS's Press Release describing those changes. If you have general questions about the I-9, read the 2007 I-9 Handbook for Employers, also from the USCIS. And, feel free to complain to your congressperson about the Paperwork Reduction Act.
