Guide to Global Payroll Management - 2020 - 9-19

Employment Verification and Nondiscrimination Requirements
What constitutes 'knowingly' hiring unauthorized aliens? Under IRCA (8 USC
§1324a(a)(2)), it is unlawful for an employer, after hiring an alien, to continue to employ the
alien in the U.S. "knowing" the alien is (or has become) unauthorized with respect to such
employment. An employer can violate this section by having either actual or constructive
knowledge (i.e., the employer knew or should have known) that an employee is unauthorized
to work. In 2007, ICE issued final regulations describing safe harbor procedures for employers that receive a "no-match" letter from the Social Security Administration (SSA) or DHS.17
A federal district court in California issued an order stopping ICE's regulations from taking
effect as scheduled in September 2007.18 After two years of delays and court battles, ICE
withdrew the constructive knowledge regulations in October 2009. At the time, ICE said it
would focus its enforcement efforts on increased compliance through improved verification.
Court finds no constructive knowledge in SSA no-match letters. A federal appeals
court confirmed an order for reinstatement and back pay for 33 employees who were fired
after being given only 3 days to correct information reported in SSA no-match letters and
failing to do so. The court said the no-match letters and the fired employees' responses did
not put the employer on constructive notice that it was employing undocumented workers.19

Employment verification program - E-Verify
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created three
verification pilot programs. Each pilot used an automated confirmation system through
which employers match information provided by new employees on Form I-9 against existing information contained in the Social Security Administration's or DHS's database to confirm the employee's employment eligibility. The pilots were conducted in select states and
originally, each was scheduled to last up to four years. By mid-2003, the Basic Pilot was
the only survivor. In December 2003, the Basic Pilot Program Extension and Expansion
Act extended the Basic Pilot for 5 more years and broadened its reach to all the states.20
In 2007, the Basic Pilot Program became the E-Verify Program. E-Verify has subsequently
been extended through multiple DHS appropriations bills.
E-Verify Program. The E-Verify Program involves verification checks of the SSA and
DHS databases, using an automated system to verify the employment authorization of
all newly hired employees. Participation in E-Verify is voluntary at the federal level, and
it is free to participating employers other than some federal entities and previous serious
violators of the IRCA requirements. The program falls under the jurisdiction of USCIS's
Systematic Alien Verification for Entitlements (SAVE) Program.

17. 72 F.R. 45611, 8-15-07.
18. American Federation of Labor v. Chertoff, No. C 07-04472 CRB (ND Cal., 10-10-07).
19. Aramark Facility Svcs. v. Service Employees Int'l Union, Local 1877, No. 06-56662, 2008 U.S. App. LEXIS 12704 (9th CA,
6-16-08).
20. Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. 108-156; 69 F.R. 75997, 12-20-04.

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