September 2, 2009
Previously published on August 21, 2009
On August 19, 2009, the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), published a proposed rule in the Federal Register to rescind the so called “safe harbor” regulation, that would allow ICE for the first time to use a mismatched name and Social Security number as evidence that an employer knew or should have known that a worker lacked legal status to work in the United States. Public comments on the proposed rule to be submitted by September 18, 2009.
Currently, the Social Security Administration (SSA) sends a letter notifying employers when an employee’s Social Security number does not match SSA’s records. Under the “safe harbor” regulation, employers who receive such letters must resolve mismatches or risk a finding that they knew or should have known the worker was not legally authorized to work. The rule is known as the “safe harbor” regulation because employers who follow its procedures are protected from immigration violations based on the mismatch.
The safe harbor regulation was never implemented because a federal court issued an order blocking implementation of the rule. In the new proposed rule (rescinding the safe harbor regulation), DHS explained that it has decided to focus on immigration enforcement efforts and community outreach on increased compliance through enhanced employment verification programs, such as E-Verify, and programs such as ICE Mutual Agreement Between Government and Employers (IMAGE).
After a July 8, 2009 DHS announcement that it planned to propose a new regulation to rescind the safe harbor regulation, the Senate approved by unanimous consent an amendment to the 2010 Homeland Security appropriations bill prohibiting the use of 2010 funds to rescind the safe harbor rule. If a final rule rescinding safe harbor is in place on or before September 30, 2009, no 2010 funds will have been used and the regulation will be void. Accordingly, rescinding the controversial regulation depends upon completing the process before the September 30 deadline, which may not be possible. Employers should watch this issue closely, as the battle over safe harbor may not be over.
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