Stern Elkind Curray & Alterman News and Updates

On September 14, 2007, a new Immigration and Customs Enforcement (ICE) regulation goes into effect that will change the way that businesses must deal with the receipt of no-match letters from the Social Security Administration (SSA) and similar letters from ICE after an I-9 audit. Since 1986, employers have been prohibited from knowingly hiring or continuing to employ unauthorized workers. The old rules make employers responsible not only for what they know (actual knowledge), but also what they should know (constructive knowledge). The new rule expands the definition of "constructive knowledge." If an employer does not follow the new regulation's "safe harbor" steps after the receipt of a no-match letter, ICE could use this as evidence that the employer has constructive knowledge that an employee is unauthorized to work in the U.S.

Employers that receive no-match letters must complete the following steps in order to take advantage of the "safe harbor" provision:

1) Check company records for clerical errors within 30 days upon receipt of a no-match letter and, if possible, correct the record and verify that there is a match with the relevant agencies (for SSA no-matches, employers can use the Social Security Number Verification System (SSNVS) through www.ssa.gov/employer/ssnv.htm or 1-800-772-6270). Employers should make a record of the manner, date and time of the verification.

2) If there is still a no-match, ask the employee to confirm that the employer's records are correct within 30 days upon receipt of a no-match letter. If there is an error, then correct the record and verify that there is a match with the relevant agencies. If the records are correct, ask the employee to pursue the matter with the relevant agency. Tell the employee that he or she has 90 days to address the situation and get the matter resolved.

3) If the no-match is not resolved within 90 days after receipt of the letter, complete a new I-9 for the employee within 93 days from the receipt of the letter. However, the employer cannot accept a document with the SSN that was the subject of the no-match letter. Also, identity documents (I-9 List B) and documents used to establish both identity and eligibility for employment (I-9 List A) must contain a photograph.

4) If the no-match is not resolved and the employee's identity and work authorization cannot be verified through the I-9 process, then the employer must take action to terminate the employee or risk liability for knowingly continuing to employ an unauthorized worker.

It is important to remember that companies should apply policies consistently to all employees with no-match issues to prevent violations of anti-discrimination laws. ICE officials have recently indicated that worksite enforcement is a top priority for the agency. The new "no-match" regulation is only one piece of their enforcement strategies. Employers can face severe civil and criminal penalties for violations, including fines and jail time.

Our firm has taken a number of steps in response to ICE's expansion of worksite enforcement. Stern Elkind & Curray has merged with Carter & Alterman to increase our capacity to advise employers and respond to ICE investigations. We have created a "bundled services" approach to provide employers with a package of services to protect themselves in the new climate of ICE enforcement. We have also scheduled a special session as part of our advanced seminar on September 28, 2007 to address these issues. For more information, please use the "Contact Us" link on our website http://www.secalaw.com/.

The Government announced that USCIS will be taking over the adjudication of applications for humanitarian parole from U.S. Immigration and Customs Enforcement (ICE). Humanitarian parole is given to individuals who can show a compelling humanitarian need to enter the United States but do not qualify for any visa. These applications considered on a case-by-case basis and are granted very sparingly. The application procedures for humanitarian parole within the Department of Homeland Security will remain the same. It is unknown whether this transfer of authority will lead to more or less favorable adjudications.

On August 10, 2007, the Department of Homeland Security released an advance copy of the much-awaited Social Security "No-Match" regulation which determines what an employer must do if it receives a no-match letter from the Social Security Administration. The rule expands the definition of "constructive knowledge" and sets forth steps an employer must take if it receives a no-match letter.

Our office is following these developments which is part of our ongoing efforts to work with employers to create a specific employee verification program that takes into account all of the Federal and State laws on employee verification.

The Bush Administration announced on August 10, 2007, 26 new measures which continue or expand current policies or procedures for stepping up enforcement against employers who hire undocumented workers. Many politicians and leaders have reacted to the announcement according to their respective positions on immigration law and comprehensive immigration reform. Employers should take steps to make sure their employee verification systems are in compliance with State and Federal laws.

In the August 3, 2007 edition of the Denver Business Journal, the newly-formed immigration law firm Stern Elkind Curray & Alterman is featured in a front page article. The article refers to the recent merger of Stern Elkind & Curray and Carter & Alterman law firms, and discusses the new firm's capabilities in assisting businesses with the myriad regulations regarding employment verification that all employers must follow. To read the article, go to http://denver.bizjournals.com/denver.

We are pleased to announce that the firms of Stern Elkind & Curray and Carter & Alterman have merged effective August 1, 2007. The new firm, Stern Elkind Curray & Alterman LLP will continue in the office space occupied by Stern Elkind & Curray. The merger creates the largest immigration firm in the Rocky Mountain region. We have the depth to handle the myriad of issues that impact businesses and individuals in a changing and complex immigration law environment.

The Department of Labor has announced that they are creating an email address for people to report violators of the provisions of the recently-published "no substitution" rule. Employers need to be aware of the fact that starting July 17th employees may not pay any part of the fees, costs and expenses incurred in connection with preparing and filing a labor certification application. An employee can pay the fees and costs for filing the I-140 and adjustment of status. Violation of this rule can have serious repercussions.