In August, 2007, the Department of Homeland Security (”DHS”) issued “No Match” letter rules that purported to hold that employers who failed to resolve “No Match” letters issued by the Social Security Administration (”SSA”) could be found to have “constructive knowledge” of unauthorized employment. To recap the problem, it is not unusual for an employer’s W-2 tax form filing not to square with SSA’s database, resulting in a letter to the employer explaining that the employee’s Social Security Number (SSN) does not match up with government records.  The Department of Homeland Security sought to address this issue by promulgating rules that would create a “safe harbor” for employers who followed DHS and SSA procedures. As it happened, the rule drew a fire storm of litigation from labor groups which succeeded in having the enforcement of the rules stayed by a Federal Court.   Now, DHS is trying it again. The proposed rule, which we summarize below, is now subject to a comment period due to end April 25, 2008. All employers should be concerned about this. At least one publication, the “New York Times” recently described DHS’s efforts in this regard as completely misguided (See “A Foolish Immigration Purge [NYT March 27, 2008]):

(1) Within 30 days of receiving a “no match” letter the employer would have to

(a) Check its records to see if there was a mistake in the Form W-2 filing, and

(b) If the employer’s records were accurate, it would have to immediately notify the employee within 5 business days of the receipt of the “no match”. The employee would then have 90 days from the employer’s receipt of the “no match ” letter to resolve the discrepancy with the agency that issued the letter.

(2) If the “no match” was not resolved within 90 days, the employer would have to re-verify the employee’s status on the basis of I-9 procedures.

(3) The employer and employee would have three (3) days to complete the re-verification process.

(4) If the employer could not verify the employment elgibility of the employee and his/her identity as per the I-9 procedures, the employer would be confronted with the choice of either terminating the employee or risk a “constructive knowledge” finding by DHS in the event of an enforcement proceeding.    ¼/p>

In its review of current legislative developments, C-G noted a recently submitted bill–Senate Bill 2653 (S.2653), Section 4 of which is entitled “Enhancing United States Competitiveness for International Students, Scholars, Scientists and Exchange Visitors.” Among the aims of the bill, which would be significant for student F-1 visa holders, is that (1) it would abolish the requirement that students must have a foreign residence that they have no intention of abandoning; (2) it would allow “short term” study on a B-2 visa; (3) it would address the cap-gap problem, previously reported, by automatically extending the student visas of those who have obtained H-1B  petition approvals for an employment  start date in the next government fiscal year (which commences October 1); and (4) it would introduce the concept of a “trusted travelor” simplified visa application procedure that would most notably allow for the waiver of the personal consular interview in instances where the applicant is considered a low risk for visa violations.

As with all things legislative, it remains to be seen whether the bill will advance in the law-making process, but its narrow focus–on students and scholars–may help it gain positive attention, and maybe even support. We expect, however, that the initiative will probably have to wait out the Presidential elections. We will keep you posted on developments.          ¼/p>