In a fact sheet released April 30, the new administration’s DHS announced: “Effective immediately, ICE [Immigrations and Customs Enforcement] will focus its resources … on the criminal prosecution of employers who knowingly hire illegal workers.”

Of the 6,000 arrests made in 2008, only 135 were of employers — a ratio the DHS now feels is much too low.

Does this mean companies need to do anything differently? No — they should just continue rigorously following all hiring laws.

Nothing in the law is changing — just the way the law is enforced. According to the fact sheet, ICE use “all available civil and administrative tools, including fines and debarment, to penalize and deter illegal employment.”

In the latest move of a battle that’s been fought for the past year and a half, a federal judge has denied a request to speed up a hearing involving the proposed regs.

In August of 2007, the Department of Homeland Security (DHS) issued a rule outlining the steps employers need to take when they receive a letter from the feds indicating the SSN provided by a new hire doesn’t match the info in the government’s database.

Before the rule could have any impact, a federal court issued an injunction to block it. In October of last year, the DHS issued the rule again, along with some more background information to address the court’s concerns.

The DHS asked the court to accelerate the process so the issue could be resolved early in the new year, but the judge blocked the request.

No word yet on if and when the new rules will go into effect. We’ll keep you posted.

If the Department of Homeland Security gets its way, employers will soon share a bigger part of the burden in the fight against illegal immigration. Here’s what HR needs to know.

First, some background:

In August of last year, the DHS issued new regulations clarifying the steps employers must take when they get a “no-match” letter from the Social Security Administration — a notice that the name and social security number provided by an employee don’t match up with the SSA’s database.

However, a federal court in California issued an injunction to keep the rule from going into effect.

Last week, the DHS revised its proposal by including additional information and asked the court to lift the ban. The rules themselves are the same as they were last year:

• When companies get a no-match letter, they have 30 days to check their own records and see if there’s a mistake on their part. If so, they need to send the SSA the corrected information and let them know the problem’s been solved.
• If there’s no error in the company’s paperwork, the firm must tell the employee about the notification. From that point, the employee has 90 days to clear up the problem with SSA.
• At the end of the 90-day period, the company has three days to complete a new I-9 form for the employee.

The DHS says if companies follow those guidelines, they won’t be charged with knowingly hiring unauthorized workers.

But if no corrective action is taken within 90 days, the company will be in violation of the law.

The court’s expected to reconsider the proposal soon. We’ll keep you posted.

Avoid bias claims

Another point HR needs to watch for: As one government agency wants companies to take a tougher stand on unauthorized workers, the courts are also ready to punish those who take it too far.

No-match letters on their own don’t prove that a worker is undocumented. Unless there’s other overwhelming evidence that an employee is breaking the law, employers should give workers the full amount of time allowed by the DHS to correct any mistakes.

Otherwise, the company is opening itself up to wrongful termination and discrimination suits.

This November, the DHS’s E-Verify program is scheduled to end unless Congress passes legislation to continue it.

Though a House of Representatives committee had previously shot down an amendment to extend funding for E-Verify, a different extension bill was recently introduced.

The bill, which extends the program for five years, was passed by the full House at the end of July. There’s no word yet on when the Senate will vote on its version of the bill.

The vote doesn’t mean lawmakers are happy with E-Verify, though.

The law would allow Congress to change the program at any time during those five years. And many legislators (including the bill’s author, Rep. Gabrielle Giffords, D-Arizona) have testified that the program should continue — but needs to be reformed to correct accuracy and security issues.

The facts:

The company received “no-match letters” — notice from the Social Security Administration that the social security number provided by an employee doesn’t match the number in the SSA database — for a group of union workers. The employees were given three days to get a new SS card with the correct number or prove that an application for a new card had been mailed. The employees who didn’t complete the task in time were fired. They sued, claiming the terminations violated their collective bargaining agreement.

The employer said:

The firings were justified because the letters — and the employees’ failure to apply for new cards in time — gave the company reason to believe the employees weren’t authorized to work in the U.S.

Who won the case?

Answer: The employees.

Why: “No match letters” aren’t always sent because an illegal worker’s using a phony SSN. Often, human error is to blame, the judge said.

Also, the court ruled giving the employees just three days to correct the discrepancy was unreasonable and violated the CBA. New rules proposed by the Department of Homeland Security last year, for example, would have given employees a full 90 days to correct SSN discrepancies.

Cite: Aramark Facility Services v. Service Employees International Union Local, 1877