Immigration and Customs Enforcement agents raid, January 2007. Credit: Mark Avery/AP Photo.
by Frank James
Homeland Security Secretary Michael Chertoff and members of his department have reason to be more frustrated today. A federal district court judge in San Francisco placed a temporary injunction on the department’s effort to crack down on employers who employ illegal workers.
The injunction freezes the federal government’s efforts to use so-called no-match letters in which employers are informed that workers’ Social Security numbers don’t jibe the government’s records.
After being informed of an inconsistency, workers have a chance to show that the government’s records are wrong. If they can’t, employers are bound by law to fire those workers or face federal fines and even criminal sanctions
Labor groups, the American Civil Liberties Union, the U.S. Chamber of Commerce and immigration groups joined together to sue the federal government, claiming that mistakes in the federal database would penalize workers legally entitled to work in the U.S.
U.S. District Court Judge Charles Breyer essentially said that not issuing an injunction would cause more harm to employers and workers than to the federal government. The magnitude of DHS’s safe harbor rule is staggering. If enacted, DHS will immediately mail no-match packets to 140,000 employers, identifying no-matches for approximately 8 million employees. There can be no doubt that the effects of the rule’s implementation will be severe.
Thousands of employers would bear the “significant” expense of complying with the
rule’s new 90-day timeframe. See Dickson Decl. 4. Because there has not been an official
timeframe for resolving no-match letters in the past, employers have generally resolved
mismatch problems “at their leisure.” See id. 7.
Therefore, many employers who want to take advantage of the safe harbor provision will have to develop costly human resources systems capable of resolving problems within the new time frame. See id. (“[H]uman resources departments will have to put systems into place designed to resolve mismatches with the employee’s cooperation with in the ninety-day window,” which “will take time and money to develop and implement.”).
The union plaintiffs have also identified ways in which employees will be irreparably harmed. Kenneth Apfel, ex-Commissioner of the SSA, believes – based on his prior experience at the agency – that “there will be many legally authorized workers who cannot resolve a mismatched earnings report” by the deadline imposed by the new rule. See Apfel Decl. 17. Because empirical research suggests that mass layoffs often follow receipt of a no-match letter, see Theodore Decl. 11, there is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days, even if the employees are actually authorized to work. On the other side of the scale, a preliminary injunction would cause significantly less harm to the government. The government argues that a preliminary injunction would preclude SSA from sending out no-match letters for the 2006 tax year, “and so frustrate the purpose of providing notice to employers that their employees’ social security earnings are
not being credited to their accounts.” See Opposition at 54. But the plaintiffs have not requested a preliminary injunction precluding SSA from sending out its traditional no-match
letters for tax purposes, as the agency has for over a decade.
Chertoff had hoped that a comprehensive immigration-reform package would pass Congress earlier this year and be signed by the president in order to standardize the process whereby employers verifiied the legal work status of employees.
But that didn’t happen, largely because Americans who wanted tougher immigration enforcement scuttled an immigration deal brokered by the White House. Those voters demanded stricter enforcement of existing immigration laws first before any immigration deal was reached.
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So the Bush Administration decided Chertoff’s department would get tough.
But the department has been thwarted in its efforts to enforce the laws on a piecemeal basis. A program called E-Verify it had hoped to get underway in which employers would check workers’ legal status using a Internet link to a federal database met an obstacle when Illinois declined to go along, telling companies they would be in violation of state law if they did. The department is suing in that case.
Today’s federal court injunction is just one more frustration.
In a statement after the judge’s decision, Chertoff said:
Although the Judge rejected many of the plaintiff’s legal challenges to the department’s no-match regulation, we are disappointed by the district court’s decision today that temporarily continued the injunction against the regulation. We are reviewing the decision with the Justice Department and will examine all of our options, including appeal.
The no-match regulation gives employers clear guidance on what to do if they receive a letter from the Social Security Administration communicating that an employee’s name does not match the social security number it has on file. If an employer follows the regulation’s guidance in good faith, which entails various steps to rectify the no-match within 90 days of receiving the letter, U.S. Immigration and Customs Enforcement will not use the letter as evidence in an enforcement action against the employer. If the company does nothing to resolve the problem it can be held liable for employing an unauthorized worker and could face stiff penalties or sanctions. Ultimately, employer diligence will make it more difficult for illegal aliens to use a fraudulent social security number to get a job.
President Bush made clear in August that we are going to do as much administratively as we can, within the boundaries of existing law, to further secure our borders and enforce our immigration laws. Today’s ruling is yet another reminder of why we need Congress to enact comprehensive immigration reform.
The American people have been loud and clear about their desire to see our nation’s immigration laws enforced. We are taking aggressive steps at our borders and in the interior to do just that and the no-match regulation is an important part of our efforts. We will continue to aggressively enforce our immigration laws while reviewing all legal options available to us in response to this ruling.
Meanwhile, the federal government’s opponents were, not suprisingly, pretty satisfied.
Here’s a statement from Service E,ployees International Union Executive Vice President Eliseo Medina:
Today, the court’s unequivocal decision to stop the “no match” madness is a victory for all workers and all well-meaning employers. The federal court has seen the Administration’s social security “no match” regulations for what they are—an illegal, ill-conceived measure that would threaten thousands of innocent workers and lead to discrimination and massive workforce disruptions.
Today’s decision sends a clear message that punitive crackdowns that attempt to sidestep the law will not be tolerated. Efforts to fix a badly broken immigration system must embody our good sense and our humanity. We will not let an intolerant minority undermine the wellbeing of the majority.
It’s time to stop this growing current of unwise, enforcement-only immigration measures that are making life increasingly miserable for many of our nation’s hardest, most underpaid workers. It’s time to stop the indiscriminate round ups and get back to finding solutions that strengthen—rather than divide—our nation.