No match compliance

Here is guidance from the National Council of Agricultural Employers on the no match rule. I published to the Fresh Produce Industry Discussion Group, as Google docs doesn't support pdf files. The file contains scenarios relating to the no match rule and suggested appropriate actions by employers.

From Sharon Hughes, NCAE executive vice president, comes these introductory remarks:

As you are probably aware, the Department of Homeland Security (“DHS”) has issued a new regulation about how to respond to a Social Security no match letter or a notice of suspected document from DHS itself.1 There are a number of ambiguities in the new rule and it is unclear how it will ultimately be applied. Based on several hours of discussion with high DHS officials, it is clear that DHS will apply the rule rigidly and strictly. In these conversations, DHS officials signaled that ambiguities both in the facts and the law will likely be construed against employers. The guidance that follows is therefore conservative.2 While others may recommend a more aggressive approach or seek loopholes in the rule, such approaches involve more risk. Whether you follow such an aggressive approach or the more conservative one set out in this guide is ultimately a business judgment in the particular circumstances. Unfortunately, the no match rule does not cover many of even the most likely scenarios that agricultural employers will encounter. Conversations with DHS officials indicate that the agency will take a rigid approach to applying it. If an employer deviates from the rule, DHS may, but not necessarily will, deem the employer’s response to be unreasonable and evidence of knowing employment of unauthorized workers. Moreover, nothing in the rule lessens the duty to act reasonably in situations not addressed in the rule and its explanatory comments where there is information that a person is or has become unauthorized. DHS will consider whether the employer’s conduct was reasonable when viewed under the totality of the circumstances.