Lawsuit Targets Homeland Security ‘No Match’ Rule

HAV editor’s note: For more information on the ‘no match’ rule, see Patricia Ice, HAV’s immigration advisor’s column: Feds’ new “get tough” policy searching for the undocumented

SAN FRANCISCO – As the Department of Homeland Security (DHS) pushes for a new mechanism to target employers of the undocumented, a coalition of labor and immigrant groups and chambers of commerce push back, and small business owners watch warily.

A new rule published Aug. 15 by DHS, to be implemented by the Office of Immigration and Customs Enforcement (ICE), would have turned an administrative procedure of the Social Security Administration into an immigration law enforcement tool, according to experts on Access Washington, a New America Media-sponsored, twice-monthly conference call with ethnic media on Sept. 18. A court order temporarily suspended the rule on Aug. 31.

The Social Security Administration sends letters to business owners each year when at least 10 percent of their workers’ names do not match the employees’ social security numbers.

The new rule, said Monica Guizar, employment policy attorney of the National Immigration Law Center, requires those employers to take certain steps to verify their employees can legally work. If their workers lack legal authorization, employers can take action or “keep on going and risk getting caught,” Guizar said.

A fact sheet on Worksite Enforcement recently issued by ICE warns of heavy fines and incarceration for “unscrupulous” employers who knowingly employ unauthorized, alien workers. Since the DHS has no access to SSA records, by law, it would have to catch employers of the undocumented through worksite investigation, according to Guizar. In an investigation, ICE audits employers’ records, and the “no match” letter would become evidence of prior knowledge that they employed the undocumented.

On the call was Jennifer C. Chang, staff attorney at the ACLU Immigrants’ Rights Project and co-counsel to the lawsuit that successfully stayed the rule’s implementation. The lawsuit argued that the rule burdened businesses, while discriminating against and violating workers’ rights, and that the DHS and SSA were overstepping their boundaries.

“Both the DHS and SSA are exceeding the powers conferred to them by Congress,” Chang said. The DHS completely changed its policy by requiring employers to investigate after receiving the “no match” letters, but did not prove its case for the change, Chang said.

Guizar named “labor organizations, worker rights groups, and immigrant organizations,” as some of the plaintiffs in the lawsuit, including the AFL-CIO, “who are working together to bring awareness about the issue and calling to task the SSA for something it has no authority over: immigration enforcement.”

A San Francisco court will hear arguments from both sides Oct. 1. The SSA planned to send 140,000 letters to employers with inserts from DHS. Once the restraining order was issued, the SSA suspended the mailing and is waiting until the court decides before “getting the process going again,” said Guizar.

The new rule would affect small businesses greatly, said Tom Delaney, director of government affairs for the Professional Landcare Network, an association of 4,000 lawncare and landscaping companies nationwide. The most important factor to small business growth is finding employees, Delaney said. He believes most small businesses would comply with the new rule.

However, he said, “some companies may start paying people under the table and some may go under.” Those fired workers, he said, may “get a truck and start their own businesses to compete.”

Once they receive the “no match” letters, employers face a confusing, time-consuming bureaucratic process to verify worker status or find a mistake in the records, Delaney said.

The SSA often sends letters by mistake because of typographical or other human errors, said Jennifer C. Chang, staff attorney at the ACLU Immigrants’ Rights Project. From the moment the SSA started sending the letters, in 1994, said Monica Guizar, people have been fired erroneously. In 2002, she said, the SSA began including language telling employers not to take action against the workers based on the “no match” finding.

Still, Guizar said, “Many times, lawfully authorized workers are fired because of the ‘no match’ records.”

The lawsuit saved employers from DHS enforcement action, Guizar said, and kept its power at bay. More groups are joining the plaintiff’s side in the lawsuit, she said, and her group is putting pressure on businesses to contact Congress.

“Government agencies have power to govern laws, and to interpret statue regulations,” she said. The “no match” rule, she believes, if allowed, gives the DHS broad authority to overstep its bounds.

Related Articles:

ICE’s Deadly Care

Sen. Feinstein’s Reluctant Compromise on Immigration

Access Washington: An Update on Immigration Reform

Peter Micek is an editor for New America Media.