Washington Post: No-Match Lawsuit Seeks to Block No-Match Regulation

Planned Crackdown on Immigrants Denounced

By Spencer S. Hsu
Washington Post Staff Writer
Thursday, August 30, 2007; A04

The U.S. Chamber of Commerce and the AFL-CIO this week separately assailed a new White House-backed crackdown on illegal immigration, warning of massive disruptions to the economy and headaches for U.S. citizens if the proposal goes ahead as planned in the coming days.

The Bush administration intends to begin writing to 140,000 employers on Tuesday regarding suspect Social Security numbers used by an estimated 8.7 million workers, as a way of pressuring them to fire illegal immigrants. President Bush disclosed the plan three weeks ago as part of a repackaged, 26-point enforcement program after Congress failed to overhaul U.S. immigration laws this summer.

But leaders of the U.S. Chamber of Commerce and a coalition of trade groups representing the politically influential construction, lodging, farming, meatpacking, restaurant, retail and service industries appealed on Monday to the Department of Homeland Security and the Social Security Administration to postpone the plan's implementation for six months.

Raising the possibility of plant closings, autumn-harvest interruptions and other destabilizing consequences for the U.S. economy, 50 business organization members of the Essential Worker Immigration Coalition signed a letter warning of "uncertainties, disruptions, and dislocations throughout broad swaths of the workforce," as well as discrimination against Hispanic and immigrant workers.

Yesterday, the AFL-CIO, the American Civil Liberties Union, the National Immigration Law Center and local labor groups separately asked a federal judge in San Francisco to stop the mass mailing and kill the plan outright. They alleged that the DHS is overstepping its authority to enforce immigration laws and is misapplying the Social Security system in a way that will unfairly penalize law-abiding workers and employers.

The groups said that inaccurate federal databases could sweep U.S. citizens and legal residents into a bureaucratic morass. The Social Security database used to cull suspicious numbers contains erroneous records on 17.8 million people, including 12.7 million native-born U.S. citizens, the Social Security Administration's inspector general reported last year.

"This rule is a new tool to repress workers' rights in the name of phony immigration enforcement," AFL-CIO President John J. Sweeney said in a statement. The plan "will cause massive discrimination against anyone who looks or sounds 'foreign,' " said Lucas Guttentag, director of the ACLU's Immigrants' Rights Project.

In a statement, Department of Homeland Security spokesman Russ Knocke called the lawsuit "completely without merit, and we intend to fight it vigorously."

Asked about the business coalition's request for a six-month reprieve, Knocke said: "The list of signatures tells you why immigration reform has been hard, and why we often face enforcement challenges. Still, we're going to restore public credibility on enforcement."

The attacks from the left and the right come as Homeland Security Secretary Michael Chertoff warns of "serious" and "unhappy consequences" for the sectors of the U.S. economy that depend on illegal labor, explaining that these are the costs of reestablishing voters' confidence.

Administration officials have blamed the congressional defeat of an immigration overhaul package partly on Washington's failure to back up its tough rhetoric on illegal immigration with action, saying that political hypocrisy particularly undermined support among conservative groups.

"Historically, whenever any administration has tried to enforce the laws that are on the books, they have received push back from stakeholders" and from "the same congressmen who say we need to be tough on immigration," said Deborah W. Meyers, an analyst at the Migration Policy Institute, a nonpartisan think tank in Washington.

Some experts speculated yesterday that the new enforcement effort might have the dual aim of solidifying Bush's standing among an unhappy part of the Republican Party's base and punishing business groups that did not adequately support the immigration overhaul package.

"I don't know if there's the will for it. Maybe it's too little, too late, but they're trying," said one congressional lobbyist, who said the administration appears to be trying to build pressure to revive the overhaul plan in Congress. The lobbyist spoke on the condition of anonymity because of the sensitivity of the subject.

Under the new rules, set to take effect on Sept. 14, employers that receive "no-match" letters have 90 days to resolve discrepancies. If they do not, the DHS may conclude that employers knowingly violated the law by employing illegal workers, opening the door to fines and even criminal arrests.

That approach marks a major change. The Social Security Administration has long sent "no-match" letters, and it has found that 4 to 10 percent of workers have suspect numbers because of typographical errors, name changes resulting from marriage or multiple surnames, as well as fraud. But, until now, it has not held employers liable.

The problem is greater in some industries. Farm groups estimate that 70 to 90 percent of field workers lack proper documents. Raids at meatpacking plants turn up discrepancies in about 30 percent of workers' documents.

AILA President Kathleen Walker on Administration Enforcement Plan

WASHINGTON, DC - "Stepping into the vacuum created by Congress' inability to enact workable comprehensive immigration reform, the Administration ramped up its enforcement arsenal today, leaving many employers between a rock and hard place," stated Kathleen Campbell Walker, President of The American Immigration Lawyers Association (AILA). "The real solution, recognized by the Administration, is comprehensive immigration reform," Walker continued.

Enforcement of immigration laws is an important component of our immigration system. And enforcement efforts should be smart, not just tough. Enforcement only is not the solution.

The Administration's newest initiative requires employers to resolve discrepancies between their employee records and those of the Social Security Administration or the Department of Homeland Security. Once the employer is put on notice by SSA or DHS of a discrepancy in Social Security number or immigration status information, the employer has 93 days within which to re-verify the information. If the employer is unable to correct the discrepancy within 93 days, the employer has two choices: either terminate the employment and risk lawsuits by employees or continue the employment and risk severe civil and criminal sanctions from DHS. As the Equal Employment Opportunity Commission commented on this proposed rule last year, "The EEOC is concerned…employers have incentives to take actions that violate Title VII and/or [immigration law's] nondiscriminatory provisions."

"Employers often receive 'no match' letters for very legitimate reasons, such as clerical errors, or failure to register a change of name after marriage. Both employers and employees can face bureaucratic delays in trying to document and correct records. It is unrealistic to expect employers to be able to jump through these hoops in the timeframe provided, and unfair for an employee to face potential termination as a result of these delays. Imagine the economic chaos this would cause. It would worsen worker shortages across industries such as agriculture, hospitality, and construction and unleash a flood of misery upon employers and their employees alike," said Walker.

Washington Post: New Plan Steps Up Immigration Enforcement

New Plan Steps Up Immigration Enforcement

By William Branigin
Washington Post Staff Writer
Friday, August 10, 2007; 3:40 PM

The federal government today announced a new plan to crack down on illegal immigrants and their employers using existing laws, while also streamlining current guest worker programs.

Under the plan, the government will step up interior enforcement of the nation's immigration laws and strengthen a program aimed at identifying illegal-immigrant workers who use false documents to gain employment. The effort involves bolstering an electronic system to verify eligibility for employment and increasing penalties for employers who deliberately hire illegal workers.

"Obviously there are employers who deliberately violate the law, and we will come down on them like a ton of bricks," Homeland Security Secretary Michael Chertoff said at a news conference to announce the new measures.

Commerce Secretary Carlos M. Gutierrez, appearing alongside Chertoff at the news conference, said the package of administrative reforms would "sharpen the tools we have" against illegal immigration while also helping employers who have legitimate needs for foreign workers. He said the government will overhaul regulations that implement existing guest worker programs for agricultural and other seasonal employees to make the programs more "workable." The administration will also study possible administrative changes to visa programs for highly skilled workers, he said.

"These reforms represent steps my administration can take within the boundaries of existing law to better secure our borders, improve worksite enforcement, streamline existing temporary worker programs and help new immigrants assimilate into American society," President Bush said in a statement. "Although the Congress has not addressed our broken immigration system by passing comprehensive reform legislation, my administration will continue to take every possible step to build upon the progress already made in strengthening our borders, enforcing our worksite laws, keeping our economy well-supplied with vital workers and helping new Americans learn English."

Chertoff denied that the promised crackdown was aimed at renewing pressure on Congress to pass a "comprehensive" immigration law that Bush has said should include a broad new guest worker program and a path to legalization for the 12 million illegal immigrants currently living in the United States. A bill containing such provisions twice went down to defeat in the Senate this year as opponents from the political right and left rallied against it. Many Republicans opposed it because they viewed it as granting amnesty to people who had violated the nation's immigration laws.

"This is not an effort to punish Congress," Chertoff said today in response to a question. "This is an effort to execute the law and keep faith with the American public."

In Kennebunkport, Maine, where Bush is vacationing this weekend, White House spokeswoman Dana Perino said the initiative represents a recognition that the president is unlikely to get his immigration bill and must do what he can under current law.

Asked if the administration has given up on comprehensive immigration reform, Perino said, "I think that we have to be realistic about what this Congress is going to be willing to do. . . . And so I think the president, while he would like to have seen comprehensive immigration reform, does not believe that the Congress will be able to get that done."

Sen. Edward M. Kennedy (D-Mass.), a leading proponent of the immigration bill that Bush had supported, denounced the new plan.

"Sadly, the administration's proposal would make our immigration crisis worse," he said in a statement. He said it would "hurt millions of immigrant families who are contributing so much to our communities and our economy" and cause "even more confusion about who can be hired, resulting in the unjust firings of legal workers who look foreign and driving more hard-working people into the shadows."

Chertoff said an existing computer program to check employment eligibility is being expanded and given a new name, E-Verify. But the program, currently used by about 19,000 employers across the country, will remain voluntary in the absence of a new law mandating its use. The immigration bill that died in the Senate in June would have made enrollment in the program mandatory for employers, Chertoff said.

The program matches information from employees with more than 425 million records held in the Social Security database and 60 million records in the Homeland Security Department's immigration databases, Chertoff said. It allows employers to "quickly and reliably check the work status of their employees online," he said.

As part of a plan to encourage greater use of the program, the Homeland Security Department today issued a regulation under which the Social Security Administration will send "no-match" letters to employers who have workers with inaccurate identity information, such as fake Social Security numbers. Employers will be held liable if they ignore "no-match" problems by failing to take corrective steps within 90 days, Chertoff said.

Homeland Security will raise civil fines and expand criminal investigations against employers who knowingly hire large numbers of illegal immigrants, he said.

To "lead by example," Chertoff said, his department is initiating a rule-making process to require new federal contractors and vendors to enroll in E-Verify. With more than 200,000 companies doing business with the federal government, this will significantly expand use of the program, the department said in a fact sheet.

The final regulation on the no-match letters will take effect in 30 days, while the new regulation for federal contractors is expected to take "a few months" to go through the rule-making process, Chertoff said.

He stressed that the new plan "provides a safe harbor" for employers who make a good-faith effort to ensure that their workers are legal and will not penalize them for such things as clerical errors.

"We don't want to punish people who try to do the right thing," he said.

Asked why the government has not used its existing authority before now to tighten immigration enforcement, Chertoff said the administration was waiting for Congress to pass a comprehensive bill that would have provided better tools.

"These measures are imperfect," he said. "These tools are not the newest and best we could use." He called them "kind of half-measures" compared to what the defeated immigration bill contained.

Now, however, "time has run out," Chertoff said. "Now we're going to go back to the old tools and sharpen them up as best we can."

Charles Miller:Employers Face Double-Barreled Federal Enforcement

Employers Face Double-Barreled Federal Enforcement The Los Angeles Times and the Associated Press have reported that DHS is ready to issue a final rule concerning the procedures that employers would need to follow when receiving Social Security Administration “no-match” letters. This regulation comes at the time when DHS Secretary Michael Chertoff has reacted to the Senate’s repudiation of the administration-backed comprehensive immigration reform legislation by promising enhanced criminal worksite enforcement. Recent federal criminal prosecutions have targeted employers in critical infrastructure industries, industries that rely on unauthorized workers, government contractors, employers who use subcontractors and companies with past enforcement histories. DHS is convinced that such employers also receive “no-match” letters with high percentages of their employee population represented. A “no-match” letter may be issued after employers send the Social Security Administration (SSA) earnings reports (W-2 Forms) with the employee’s name and social security number (SSN). If the W-2 information that the employer submits does not match SSA records, the SSA may send the “code v”, also called the “no-match” letter that informs the employer of the discrepancy. The new regulation contains the “safe-harbor” procedures, the “reasonable steps” that an employer who wishes to qualify for the safe harbor rule’s protection may take after receiving a no-match letter. Following these procedures safeguards the employer from a finding of constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States. The “safe-harbor” procedures include the employer checking for an problem in its own records which resulted in erroneous information being supplied to SSA. If the employer’s records are correct the rule requires that the noticed employee deal directly with the agency to attempt to resolve the no-match and, if it cannot be resolved within 60 days, again verifying the employee's identity and employment authorization through another I-9 verification on the 61st day without using the document in question and with the permissible documents from an updated DHS list within 72 hours. Failure to follow the safe harbor procedures subjects the employer to the risk of an enforcement action based on a finding that the employer has constructive knowledge that the employee is not authorized to work. It is expected that Social Security will be sending out new “no-match” letters to employers nationwide soon after the regulation is published. Social Security's inspector general estimates that 17.8 million records on file have inconsistencies, including those of 12.7 million native-born citizens, 250,000 foreign-born citizens and 4.8 million noncitizens. DHS estimates that the total number of inconsistencies, some as benign as a name change, could approach 25 million employee records. Those employers who have significant numbers of their employees’ whose social security numbers are found on the no-match letters will need to follow the safe harbor rules according to the advice of counsel, to carefully manage the risk of unlawful terminations and discrimination charges. It is the opportune time to conduct internal audits of I-9 forms, compliance training and risk management. For information concerning the new safe-harbor procedures or DHS worksite enforcement defense contact Charles Miller of the Miller Law Offices cmiller@millerlawoffices.com

LA TIMES: Illegal-immigrant crackdown looms

Illegal-immigrant crackdown looms

A plan to make employers fire workers with discrepancies in their records could snare many citizens and legal residents, critics say.

By Nicole Gaouette
Times Staff Writer

August 3, 2007

WASHINGTON — With the failure of immigration legislation in Congress this year, federal officials are planning a new crackdown on illegal immigrants that would force businesses to fire them or face stiff penalties. But the effort also could cause serious headaches for millions of U.S. citizens.

In the coming days, the Department of Homeland Security is expected to issue a rule outlining how businesses must respond when they receive notice that there are discrepancies in a worker's tax records.

Many businesses simply ignore such notices now. Under the new rules, employees would have a limited time to contact the Social Security Administration to correct the information, or face termination.

The rule would transfer more responsibility for enforcement to companies — part of a Homeland Security effort to break through the complacency that some officials say the corporate world has about illegal workers.

The initiative follows warnings by Homeland Security Secretary Michael Chertoff that his department would toughen enforcement if efforts to overhaul the flawed immigration system failed. The discrepancies detected in Social Security employment records can sometimes flag illegal workers on the job.

However, the planned crackdown has provoked concern because many of the errors are benign: misspellings or incorrect birthdates in records of citizens or legal immigrants. There are errors in the records of an estimated 12.7 million U.S. citizens alone, and workers rushing to correct these discrepancies could swamp Social Security offices, much as new travel regulations have paralyzed government passport facilities this year.

And businesses are complaining about bearing the burden of enforcing a flawed immigration system.

Despite such opposition, the Bush administration is pressing forward. Officials say the new rule will provide clarity for companies that have said they didn't know what to do when the Social Security Administration sent letters indicating inconsistencies in a worker's records. The administration also sees these "no-match" letters as a way to target illegal immigrants and employers of those who make up Social Security numbers or use other people's.

"Last year, out of 250 million wage reports that the SSA received, as many as 10% belonged to employees whose name doesn't match their Social Security records," said Homeland Security spokesman Russ Knocke. "That doesn't necessarily indicate a modest clerical error; it's indicative of a broader, widespread problem. The rule fixes that and tells employers there are no more excuses."

In the last two years, Homeland Security has focused increasingly on work-site enforcement — raiding factories and prosecuting employers in criminal court. In June, Chertoff said his agency would not slow down.

"We're going to continue to bring criminal cases against employers in record numbers," he warned. "Some of those employers are going to be very unhappy. They're going to say, 'It's unfair.' But in order to regain credibility with the American people that has been squandered over 30 years, we're going to have to be tough."

In 2005, the latest year for which figures are available, the Social Security Administration sent 8.1 million letters to workers at their home addresses, asking them to resolve differences between the information Social Security has on file and what is shown on their employers' W-2 forms. If no home address is available, the letter is sent to the worker's company. The agency sent 1.5 million of these letters in 2005. Officials will also write to a business if it has more than 10 employees who trigger a no-match.

In a December 2006 study to examine the accuracy of Homeland Security's existing program of voluntary employer verification, Social Security's inspector general estimated that 17.8 million records on file had inconsistencies, including those of 12.7 million native-born citizens, 250,000 foreign-born citizens and 4.8 million noncitizens — a category for legal immigrants.

When businesses ignored the letters in the past, little would happen. The Homeland Security rule is expected to give companies a few weeks to check whether the inconsistency is in their records. If it is not, the companies will have to give workers a few months to resolve the problem with Social Security. If the workers do not, the companies must fire them or face fines. The rule, expected today or early next week, could be enacted immediately or after a period of 30 or 60 days.

Laura Reiff, a co-chair of the Business Immigration & Compliance Group at Greenberg Traurig, a Washington law firm, predicts it will trigger "a massive sea change in how employers deal with no-match letters." Her firm tried unsuccessfully to delay implementation of the rule during recent debate on a Homeland Security spending bill.

"My real fear is that we'll see lots of terminations and a lot of people displaced, maybe some of them going into the underground economy," she said. "Lawfully work-authorized people may also be terminated."

Timothy Sparapani, legislative counsel with the American Civil Liberties Union, noted the millions of no-match letters that Social Security sends every year and was skeptical about Homeland Security's ability to follow through. "I don't know where they're going to get the workforce to do it," he said.

Immigrants rights groups were also concerned.

"With comprehensive immigration reform failed, this is an attempt to deal with the problem administratively, but doing this without comprehensive reform is just setting up a failed system," said Tyler Moran of the National Immigration Law Center. "This rule will have an enormous impact on the economy, and it's not just undocumented immigrants.

"We're going to see a lot of collateral damage."

AP: Administration readying crackdown on employers

Administration readying crackdown on employers

08/02/2007

By SUZANNE GAMBOA and ANABELLE GARAY  / Associated Press

Employers across the country are preparing to fire workers with questionable Social Security numbers to avoid getting snagged in a Bush administration crackdown on illegal immigrants.

The Department of Homeland Security is expected to make public soon new rules for employers notified when their worker's name or Social Security number was flagged by the Social Security Administration.

The rule, as initially drafted, requires employers to fire people who can't be verified as a legal worker and can't resolve within 60 days why the name or Social Security number on their W-2 doesn't match the government's database.

Employers who don't comply could face fines of $250 to $10,000 per illegal worker and incident.

"There's a lot of fear and anxiety about what this rule is going to mean, particularly in the agricultural sector," said Craig Regelbrugge, spokesman for the American Nursery and Landscape Association and co-chairman of the Agriculture Coalition for Immigration Reform.

The Social Security Administration has sent "no match" letters to workers and their employers notifying them of the information discrepancies for years. Its goal has been to make sure money withheld from a person's paycheck is credited to the correct worker.

The letters are not shared with other government agencies because of privacy laws.

Although employers are prohibited by law from hiring illegal workers, their responsibilities with the letters have generally ended with notifying the workers of the discrepancies and leaving it to them to deal with it.

Many employers have been warned by attorneys to be careful not to fire a worker because they got a letter, because the no match could be the result of a typo in a name or number, a computer error, a name change that wasn't reported after marriage or other reasons.

But those who don't comply with the new rule could be deemed as knowingly hiring an illegal worker.

The Homeland Security Department says the new rule provides guidance to employers on how to deal with workers who receive no match letters and give those who comply "safe harbor" if illegal workers are found at their business in an investigation or raid, said Russ Knocke, Homeland Security department spokesman.

U.S. Immigration and Customs Enforcement, a division of the Homeland Security Department, "is going to be tough and aggressive in the enforcement of the law," Knocke said. "You are going to see more work site cases. And no more excuses."

The administration trotted out the stepped-up enforcement plan last summer, but put it on hold while the Senate debated an immigration reform bill.

That bill would have granted a chance at legal status for the estimated 11 million to 12 million illegal immigrants in the country and created a temporary worker program. It also would have required employers to verify the status of all their workers.

After the bill collapsed in Congress, employers started bracing for the tougher rule.

"Congress didn't act. They didn't do what they needed to do on comprehensive immigration reform. Now there's going to be some pain to pay, and Congress is not going to feel the pain right away, it's the communities (of employees) and that's a real shame," said Laura Reiff, co-chairwoman of the Essential Workers Immigration Coalition, a national group of business and trade associations.

For Mark Chamblee, the stricter rule could mean losing some of his 28 workers at his East Texas nursery in Tyler.

Chamblee suspects a few of his workers could have trouble with their Social Security numbers and said he will fire them if the problems aren't resolved.

"Of course, it would add to the workload for the other workers," he said. "It would reduce our production and our output. Not all of our demand would be met on our products. Operating costs would go up."

Ray Atkinson, a spokesman for Pilgrim's Pride Corp., confirmed the country's largest chicken processing company recently let go employees at two Texas plants, as first reported in the Fort Worth Star-Telegram.

The company's policy "for some time now" has been to terminate employees who can't clear up discrepancies, Atkinson said.

"We're all very cautious and we're all very nervous," Chamblee said.