The Department of Homeland Security issued new immigration enforcement reforms, including a rule regarding employer responsibilities as they related to no-match letters. Announced Friday, the new rule will take effect September 14.
DHS officials also indicated they would seek regulatory reform of the H-2B program and other temporary and seasonal nonimmigrant programs. Though employer groups expressed concern that such reform could take at least a year and will fail to provide the immediate relief necessary as a result of the final no-match rule, DHS said regulatory reform is the best solution outside of enacting comprehensive reform legislation, according to an analysis of the reform conducted by the American Nursery & Landscape Association’s labor and immigration counsel.
| Associations: Action Needed on H-2B |
The new no-match rule is expected to increase the industry’s reliance on the H-2B program, industry associations say; however, Congress has not yet extended the return-worker exemption. If the current exemption that expires on Sept. 30 is not extended, it’s estimated that more than 140,000 legal workers nationwide will disappear. To encourage Congress to pass the Save our Small and Seasonal Businesses Act of 2007, visit these associations’ sites, which provide legislative contact tools – http://www.anla.org, www.landcarenetwork.org and www.clca.org. |
Several key components of DHS’ final no-match rule include a 93-day period after receiving a no-match letter, in which an employer must determine whether the employee provided correct information. If the employer cannot obtain verification that the document in question is acceptable, the employer will have to terminate the employee or face risk that DHS may find it has “constructive knowledge” that the employee is illegal, according to the ANLA report. Employers who follow DHS procedures will have a “safe harbor,” even if the worker is later determined to be unauthorized.
Another issue that concerns employers is the possibility of discrimination allegations. The rule says that employers who re-verify documents listed in no-match letters will have a defense against discrimination allegations based on document abuse provisions of current immigration law.
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