CQ TODAY MIDDAY UPDATE : DREAM Act Blocked

CQ TODAY MIDDAY UPDATE
Oct. 24, 2007 – 1:37 p.m.

Senate Blocks Bill to Aid Children of Illegal Immigrants

The Senate on Wednesday blocked the latest effort to address the thorny immigration issue, refusing to call up legislation that would allow some children of illegal immigrants to legalize their status in the United States.

Bill supporters needed 60 votes to limit debate and call up the so-called DREAM Act. The tally was 52-44, leaving advocates of the legislation frustrated.

The measure would allow the children of illegal immigrants who entered the United States before age 16 and lived here at least five years to gain conditional legal status and eventual citizenship if they attend college or join the military for at least two years. Only those who are 30 or younger on the day of enactment would be eligible.

“Since when do we in American visit the crimes of the parent on the children? Is that what America has come to?” asked Majority Whip Richard J. Durbin, D-Ill., sponsor of the measure. “What crime did they commit? They obeyed their parents. They followed their parents.”

Although a dozen Republicans voted to consider the bill, 36 voted “no.” And most of those made clear that they remain opposed to even limited efforts to legalize the status of illegal immigrants residing in the United States. The vote came four months after the collapse of broader legislation that coupled tough border security measures with provisions that could have legalized the status of most of the estimated 12 million immigrants now living in the United States illegally..

 

NILC: No Match TRO extended 10 days

Court Extends Order That Blocks Government from Implementing Flawed Social Security "No-Match" Rule

SAN FRANCISCO  |  After a hearing today, a federal judge extended for 10 days an order that temporarily stops the government from implementing a new Dept. of Homeland Security (DHS) rule that would cause U.S. citizens and other authorized workers to lose their jobs, and which would illegally use error-prone Social Security records as a tool for immigration enforcement.  The judge's order also stops the Social Security Administration (SSA) from beginning to send notices to approximately 140,000 employers across the country notifying them of the new rule, which would impact approximately eight million workers.

     "We are pleased that the judge saw the need to continue to block this rule that would lead to increased exploitation of workers," said John Sweeney, president of the AFL-CIO.  "More than 70 percent of SSA discrepancies refer to U.S. citizens, but the DHS regulation would encourage employers to fire any worker based on these erroneous discrepancies, especially if she has an accent or is perceived to be foreign born."

     Today's extension of the temporary restraining order comes as a result of a lawsuit filed in August by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC), and the Central Labor Council of Alameda County, along with other local labor movements.  In the lawsuit, the groups charge that the misguided rule violates the law and workers' rights, imposes burdensome obligations on employers, and will cause discrimination against workers who are perceived to be immigrants.

     For years the SSA has sent "no match" letters to employers if the name and Social Security information reported by a worker on a W-2 form does not match up with the information contained in SSA databases.  The "no match" letters were never considered reason to believe that an employee did not have permission to work in the U.S, and currently employers who receive "no-match" letters are not required to take any action.  In fact, there are many innocent reasons for such discrepancies such as clerical mistakes, name changes due to marriage and divorce, and the use of multiple surnames that are common in many parts of the world.

     Under the new DHS rule, employers receiving "no match" letters might be required to fire employees whose SSA discrepancies are not resolved within 90 days after the "no-match" letter is received.  If the employer does not respond to a "no-match" letter, DHS may conclude that the employer had "constructive knowledge" that an employee was not authorized to work in the U.S. and prosecute the employer accordingly.

     Today's extension was handed down in the United States District Court for the Northern District of California.

     In addition to the AFL-CIO, which is represented by the law firm of Altshuler Berzon LLP, other parties bringing the lawsuit include the Central Labor Council of Alameda County, represented by the ACLU, the ACLU of Northern California, and NILC, as well as the San Francisco Labor Council and the San Francisco Building and Construction Trades Council, represented by Weinberg, Roger and Rosenfeld.

     Lawyers on the case include Scott A. Kronland, Stephen Berzon, Jonathan Weissglass, Linda Lye and Danielle Leonard of Altshuler Berzon LLP; Jonathan Hiatt, James Coppess and Ana Avendaño of the AFL-CIO; Lucas Guttentag, Jennifer Chang, Mónica M. Ramírez and Omar Jadwat of the ACLU Immigrants' Rights Project; Alan Schlosser and Julia Mass of the ACLU of Northern California; Marielena Hincapié, Linton Joaquin and Monica Guizar of NILC; and David Rosenfeld and Manjari Chawla of Weinberg, Roger and Rosenfeld.
 

Wall Street Journal: No Match District Court Hearing in SF

Firms Brace for Crackdown on Illegal Labor

By MIRIAM JORDAN
October 1, 2007; Page A3

As a crucial hearing looms on a planned government crackdown on illegal immigrants in the workplace, many businesses are scrambling to figure out how they will cope with an expected loss of illegal labor.

A U.S. district court in San Francisco could decide as early as today whether the Social Security Administration can send out thousands of "no match" letters to employers whose workers' names don't jibe with their Social Security numbers. The notices would be accompanied by letters from the Department of Homeland Security outlining new penalties for hiring undocumented workers.

• What's Happening: A court in San Francisco could rule as early as today on a program that cracks down on hiring of illegal immigrants.

• Under the Program: Employers who receive notice that workers' Social Security numbers don't match their names would be required to fire such workers once their status was exposed, or risk fines.

• Employers Say: Small businesses don't have the resources to sort out problem cases. In some industries, they say losing large numbers of workers could prompt them to close operations.

• The Government Says: The rule doesn't impose an expense, and some businesses want to avoid liability for hiring undocumented workers.

The program, if put into effect, is expected to pose tough choices for many business owners, particularly in industries such as agriculture, construction and food service, which rely heavily on illegal workers. Employers would be required to fire such workers once their status was exposed, or risk fines.

The Bush administration prepared the crackdown after Congress failed to pass an immigration bill that would have legalized the nation's estimated 12 million illegal immigrants. At least eight million illegal laborers are believed to work in U.S. jobs.

The work-site program was supposed to roll out in September with the mailing of 140,000 no-match letters to employers. But the AFL-CIO filed a lawsuit alleging the new policy could lead to discrimination against or firing of native-born U.S. workers and legal immigrant workers. The program was delayed when a federal judge in August blocked the new policy until questions about its legality had been addressed. The hearing that opens today is aimed at clarifying this.

The new program puts employers on notice that they can no longer look the other way regarding illegal workers. If an employer receives a no-match letter on a particular worker, the company has 90 days to certify that worker's legal status; otherwise, the worker's employment must be terminated. Companies that violate the policy would face what Secretary of Homeland Security Michael Chertoff has called "stiff penalties or sanctions" higher than the fines of up to $2,200 a worker in place today.

Already, many companies are bracing for a hit -- particularly small businesses that say their survival could be at stake. Those businesses say the new enforcement places a disproportionate burden on them, subjecting them to costly and time-consuming record keeping by reducing productivity even if only a handful of workers are affected. Some businesses in industries such as agriculture and construction are talking about shutting down or moving their operations abroad.

"The typical small company is not equipped to be the nation's immigration police," says Todd McCracken, president of the National Small Business Association, which represents about 65,000 small companies. "A small-business owner can't just give no-match letters to human resources to sort out."

In early September, the U.S. Chamber of Commerce and several trade groups representing small businesses that employ low-skilled immigrants joined the lawsuit. Among others, the United Fresh Produce Association, the National Roofing Contractors Association and the Association of Nursery and Landscapers allege the Department of Homeland Security failed to perform a financial-impact assessment, as required under the Regulatory Flexibility Act, to measure the impact of the new rule on small businesses.

"This is a hollow argument coming from businesses who want to avoid liability for employing unauthorized workers," said a Department of Homeland Security spokesman. "The rule does not impose an expense for employers."

In the $1.2 trillion construction industry, at least one-third of the work force is undocumented, according to an estimate by the Bureau of Labor Statistics. Industry experts believe the actual figure is much higher: Last year alone, nearly half of new construction workers were Hispanics who had arrived in the U.S. since 2000.

The impending crackdown generates everything "from concern to utter panic among roofing contractors," says Craig Silvertooth, director of federal affairs for the National Roofing Association, based in Chicago, representing 4,300 businesses. "There is no way to run your business if this goes forward."

In agriculture, about 70% of all workers are illegal immigrants, according to independent estimates, and an existing guest-worker program supplies less than 2% of the work force required each year.

Most illegal immigrants work for bona fide businesses and are hired and paid like other workers on the payroll. To get work, the immigrants normally obtain a fake Social Security card with a made-up nine-digit number. The fake cards are peddled in immigrant neighborhoods.

When the illegal immigrants are hired, their employers don't know whether the documents are authentic. A company thus hires workers, puts them on the payroll and withholds necessary taxes. The unauthorized workers, who receive a paycheck regularly, pay into Social Security but can't draw benefits.

Social Security has been mailing no-match letters for decades, but employers haven't been held accountable for workers who failed to address discrepancies. In fact, employers have been advised not to take any adverse action against an employee based exclusively on the letter. "There has been no definitive legal obligation to take action," says Angelo Paparelli, an immigration lawyer with offices in New York and Irvine, Calif., who is advising several concerned businesses.

"Employers have to be held accountable if they are given clear notice of the fact that they may be hiring illegal aliens," Mr. Chertoff said in announcing the new crackdown. Mr. Chertoff added that about 4% of the 250 million wage reports received by Social Security each year show no matches.

Maureen Torrey, former chairwoman of United Fresh Produce and a farmer in upstate New York, says she provides W-2 forms for all her employees and withholds taxes on their earnings. She has received no-match letters in the past: 375 of her 400 workers are Hispanics, and she figures some are in the U.S. illegally.

The new rule is pushing many farmers to consider extreme options. "You've got to comply," says Mrs. Torrey, who runs Torrey Farms in Elba, N.Y. "We move our farm operations to another country or just sell out." Some U.S. farmers have already been investing or subcontracting in other countries such as Mexico.

The owner of a small California manufacturer that has 120 employees and subcontracts for the U.S. government foresees having to fire about 15% of her work force. "Because of the role they play and the tight labor market, it is probable that we would go out of business," said the woman, who spoke on condition that neither her name nor that of her company be cited.

Some observers hope the legal challenge to the administration's latest enforcement efforts will revive congressional action on immigration. In the meantime, the policy could drive more immigrants to seek jobs in the off-the-books economy, where they have fewer legal protections from employment abuses.