NOT Coming to a Theater Near You DHS Ditches “Safe Harbor No-Match” Rules
October 2009

The Department of Homeland Security today published a final rule rescinding the “Safe Harbor” guidelines it had implemented two years ago to deal with the no-match letters employers sometimes receive about their employees’ social security numbers.

In 2007 and 2008, the Department of Homeland Security created a set of Safe Harbor guidelines instructing employers how they should handle no-match letters if they did not want the receipt of the letter to constitute evidence of constructive knowledge the employer knew its employee was not authorized to work in the U.S.

No-match letters are sent by the Social Security Administration whenever the social security number reported for an employee comes back as inaccurate or not belonging to the person named. Although many reasons exist as to why a no-match letter is generated—such as a simple typo when filling out a form—DHS took the approach that the no-match letter put employers on notice that it may be employing a person not authorized to work in the U.S.

The Safe Harbor guidelines were enjoined by a federal district court in California in 2007, and have been in limbo ever since. During this time, however, DHS had continued to advise employers, via its website, that it considered following the Safe Harbor guidelines to be a good business practice.

By rescinding the Safe Harbor guidelines, DHS is signaling a focus shift towards enforcement priority. According to DHS, it plans to “focus its enforcement efforts . . . on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.”

What Should Employers Do Now?

With DHS’ focus now squarely on enforcement, a savvy employer should make sure that all I-9 forms are in order. Although your company’s level of risk will vary with many factors, including the type of industry in which you operate, we would urge you to audit your I-9 forms for all employees. While an internal audit is helpful, it’s important to remember than an internal audit will never catch the mistakes you don’t know you’re making. For that reason, it is advisable to periodically bring in an outside consultant to conduct an audit on your behalf.

This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice. Readers should seek professional legal advice on matters involving these issues.

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