Copland and Brenner

Table of Contents

1. ICE Rule Imposes Employer Obligations in "No Match" Cases
2. USCIS Proposes to Replace "Green Cards" Lacking Expiration Dates
3. DHS Documents Required for NYS Driver License and State ID

1. ICE Rule Imposes Employer Obligations in "No Match" Cases

   A final rule by U.S. Immigration and Customs Enforcement (“ICE”), published in the Federal Register on August 15, 2007, addresses situations in which there is a mismatch involving the combination of employee name and Social Security number (“SSN”) in employer records submitted to the federal government. These situations can cause headaches – and liabilities – for employers who fail to take corrective action. With the new rule, ICE has set forth employer obligations, as well as a “safe harbor” for avoiding penalties, in so-called “no match” situations. The new rule was to be effective September 14, 2007; however, a federal judge in California has issued a temporary restraining order preventing its implementation pending an October 1 hearing as to whether a preliminary injunction should be issued.

   As discussed in the rule, “[e]mployers annually send the Social Security Administration (SSA) millions of earnings reports (W-2 Forms) in which the combination of employee name and [SSN] does not match SSA records. In some of these cases, SSA sends a letter, such as an ‘Employer Correction Request’, [sic] that informs the employer of the mismatch. The letter is commonly referred to as an employer ‘no match’ letter.” A similar letter, known as a “Notice of Suspect Documents,” may be issued to an employer by ICE in connection with an I-9 (employment verification) audit. The cause for a mismatch may be one of several in any particular case, including clerical error, name change, – or, alternatively, the use of a false SSN or an SSN assigned to another person.

   No-match letters have created a problem not only for employers, but also for ICE. The agency is charged with enforcing employment verification laws under the Immigration and Nationality Act (“INA”), and it can be difficult to impute fault to an employer for having violated them. The new rule is largely intended to amend the definition of a single word and, in so doing, free it from ambiguity so that an employer’s obligations and potential liabilities are clear. Section 274A(a)(2) of the INA (8 U.S.C. 1324a(a)(2) states that “[1]t is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.” It is the word “knowing” that is the focus of the new rule. Since it is objectively difficult, if not impossible, to discern when a person “knows” something in the absence of an admission, implementing regulations and case law have sought to define the term.

   As the final rule explains, by regulation in 1990, at 8 CFR 274a.1(l)(1), the term “knowing” was defined to include “not only actual knowledge but also knowledge which may be fairly inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” That regulation cited Mester Mfg. Co. v. INS , 879 F.2d 561, 567 (9th Cir, 1989), which held that an employer who received information that some employees were suspected of using false documents to establish work eligibility, had constructive knowledge of their unauthorized status by failing to make any inquiries or take appropriate corrective action.

   The final rule amends the definition of “knowing” at 8 CFR 274a.1(l)(1) as it relates to “constructive knowledge,” by adding two “examples of information available to an employer indicating that an employee could be an alien not authorized to work in the United States,” and by explicitly stating an employer’s obligations after receiving a no-match letter or other information under 8 CFR Section 274a.1. If an employer fails to timely take “reasonable steps after receiving such information, and if the employee is in fact not authorized to work in the United States, the employer may be found to have had constructive knowledge of that fact."

   Varying timeframes (from 30 - 93 days) apply to the required employer action depending upon the circumstances involved, and must be followed closely or an employer will be penalized. While civil penalties of up to $2,200 may attach to a first offense for each alien, criminal penalties (thus including potential imprisonment) may result from "pattern and practice" violations.

   We strongly encourage all employers to read the 14-page final rule, which is in the Federal Register online at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-16066.pdf.
   

2. USCIS Proposes to Replace "Green Cards" Lacking Expiration Dates

   In a rule published in the Federal Register on August 22, 2007, U.S. Citizenship and Immigration Services (“USCIS”) proposes to require replacement of all “green cards” lacking an expiration date. The move “will enable USCIS to issue more secure [green cards] to affected aliens, update cardholder information, conduct background checks, and electronically store applicants’ biometric information that can be used for biometric comparison and authentication purposes consistent with the goals of the Enhanced Border Security and Visa Entry Reform Act of 2002.”

   Like all immigration documents, a green card (known formally as a permanent resident card or alien registration receipt card) is assigned a form number; in this case, Form I-551. Until 1989, Forms I-551 did not bear any expiration date. In August 1989, the legacy Immigration and Naturalization Service began to issue Forms I-551 reflecting a 10-year expiration date, so that aliens would periodically be required to obtain new cards. The proposed rule states that, when the 10-year card was introduced, “it was not administratively feasible for the INS to terminate the validity of all the millions of Forms I-551 in circulation that did not have expiration dates.” Now, with Application Support Centers across the U.S.A., the ability to capture biometrics data electronically, and automated filing procedures in place, the agency may “process the applications and associated fees more expeditiously.”

   The rule seeks to impose a 120-day application period, during which affected aliens would be required to apply for a replacement I-551 by filing Form I-90. Applicants would also “be required to provide their current biographic and biometric information [and] USCIS would conduct security checks to verify the identity of card recipients and continued eligibility for [permanent resident] status.” After the 120-day application period, “USCIS would set a termination date for the validity of such Forms I-551.” That date is to be determined after “assess[ing] the number of applications received and the timeframes for application processing and card production.” For those still awaiting agency receipt notices for a variety of filings in early July 2007, this concept may seem incredible.

   While others might challenge the notion, “USCIS believes that an application period of 120 days will be sufficient for affected [lawful permanent residents] to learn of the new requirement and to complete the required Form I-90.” The agency notes that “failure to carry evidence of registration [as a lawful permanent resident] is a misdemeanor” under Section 264(e) of the Immigration and Nationality Act, 8 U.S.C. 1304(e). For otherwise eligible aliens, applying for naturalization during the 120-day period may be an option. For them, “USCIS may issue interim evidence of registration.”

   Some aliens may be reluctant to apply for a replacement card over concerns that their permanent resident status may be in jeopardy. Such persons are strongly advised to seek competent legal counsel. Others may be unaware of the requirement notwithstanding USCIS publicity efforts. The proposed rule states that an alien who fails to apply for a replacement Form I-551 will still hold permanent residence since that status continues until it is terminated by entry of a removal order – but he or she “could be prosecuted for violating section 264(e).” In addition, “he or she may experience difficulties in meeting other requirements where valid documentation is necessary,” such as “after a trip abroad or in obtaining new employment.”

   Written comments must be submitted no later than September 21, 2007. The rule and instructions for submitting comments may be found in the Federal Register online, at http://www.access.gpo.gov/su_docs/fedreg/a070822c.html.

3. DHS Documents Required for NYS Driver License and State ID

   A June 7, 2007 decision by New York State’s highest court, the Court of Appeals, reported in the New York State Law Digest in August, is an important one for non-U.S. citizens seeking state driver licenses and identification cards. To obtain such documentation in New York State, an applicant must include his or her Social Security number (“SSN”) or proof of ineligibility for an SSN.

   For years, a letter from the Social Security Administration (“SSA”), known as an “L676” letter, rejecting an application for an SSN on grounds that the applicant was ineligible, sufficed as proof of ineligibility. However, an internal Department of Motor Vehicles (“DMV”) memorandum on September 6, 2001 changed its policy. Thereafter, the DMV required that applicants for a state driver license or ID present not only an L676 letter of ineligibility from the SSA, but also the underlying documents from the DHS which establish ineligibility for an SSN.

   The change was challenged on substantive and procedural grounds. The plaintiffs won the initial round, the decision was reversed on appeal, and the plaintiffs appealed to the Court of Appeals. The Court of Appeals affirmed the Appellate Division, concluding that both the substantive and procedural challenges lack merit. In doing so, the Court noted that Vehicle and Traffic Law §502(1) requires driver license applicants to “furnish proof of identity, age and fitness as may be required by the commissioner,” and that a 1995 amendment “require[s] that the applicant provide his or her social security number.” Similar requirements apply to driver license renewals and non-driver ID cards. It should be noted that an implementing regulation actually liberalizes the statutory provision, in allowing an applicant to submit his or her SSN “ or provide proof that he/she is not eligible for a social security number.” (emphasis added)

   The Court notes that, to obtain an L676 letter, an applicant already had to provide his or her DHS documents to the SSA. Having done so, the Court asks “why can he or she not submit the same documents to the DMV? Plaintiffs offer no answer to this question.” The plaintiffs, the Court states, “fail to dispute two key facts: the policy at issue imposes no significant burden on driver’s license applicants beyond the burden, which plaintiffs concede is properly imposed, of submitting an L676 letter; and the requirement of submitting DHS documentation to the DMV is a reasonable fraud-prevention measure. These undisputed facts defeat plaintiffs’ challenges to the substance of the DMV policy.” And, as to the procedural challenge, the Court found that the “requirement of DHS documentation does not impose a new obligation on applicants for driver’s licenses;” instead, the policy “merely specifies what proof is acceptable.”

   A person who drives in NYS is required to hold a NYS driver license if he or she is a state resident. A NYS resident is a “domiciliary, that is, one who lives in this state with the intention of making it a fixed and permanent abode. It shall be presumptive evidence that a person who maintains a place of abode in this state for a period of at least ninety days is a resident of this state.” The conundrum is that some aliens lack any DHS documents at all, while others may hold expired documents. Since New York State’s DMV requires that documents be “current and valid,” there is a sizeable population requiring a driver license, but ineligible to receive one.

   The Court of Appeals decision may be found online at FindLaw, at http://caselaw.lp.findlaw.com/data/ny/cases/app/74opn07.pdf. Information regarding New York State driver licenses, and other DMV matters, may be found online at http://www.nydmv.state.ny.us/.