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Immigration Law Maze: Courts Block No-Match Letter Initiative
Immigration Update: Federal court stops the Department of Homeland Security in its tracks. New no-match rules are suspended until court case in 2008 decides the fate of stricter requirements. Find out how this impacts your personnel practices.

By Staff
Date Posted: 12/1/2007

   Keeping up with the latest immigration law changes can be difficult even if you are a seasoned attorney working for a prestigious law firm. It can be mind bending for the typical pallet or lumber operation executive who is looking to comply with federal work authorization requirements.  

   In early October, the U.S. District Court for northern California left in place a temporary injunction that prevents the Department of Homeland Security (DHS) from using Social Security ‘no-match’ letters to crack down on illegal immigrants in the workplace. Concerned about the impact on legal workers and businesses, U.S. District Judge Charles Breyer upheld the existing injunction until the case goes to trial.

   Breyer’s action is likely to keep the new no-match policy from going into effect until sometime next year. The Bush administration is considering an appeal to try to push along what it considers a key to enforcing immigration and work authorization laws. U.S. Representative Tom Tancredo recently introduced a bill that gives DHS the power to enact its new no-match policy and send out the letters. This bill has yet to gain traction in Congress, and it is not clear what will happen to it.

   A coalition of labor and business interests brought the legal challenge against DHS, citing concerns about the reliability of the Social Security database as well as the burden the policy would place on workers and employers. The coalition included a somewhat unusual group of competing interests, including labor groups, the American Civil Liberties Union and the U.S. Chamber of Commerce.

   If the court eventually allows the policy to be enacted, the DHS and the Social Security Administration (SSA) would immediately mail no-match letters with new information to 140,000 employers, covering about 8 million employees. No-match situations occur when SSA data and the information submitted by a newly hired employee do not match. The September issue of the Pallet Enterprise reported on the changes to the existing rules in detail.

   Beyond simply informing the employers of the problem, the notices would put them on a tight deadline to rectify any discrepancies or face legal enforcement by DHS. If employers resolve discrepancies by the deadline, DHS indicated that the only safe thing for a company to do would be to dismiss the individual until the discrepancy is corrected. Employers that follow the new procedures will be exempt from federal prosecution under immigrant worker verification laws, according to DHS.

   The coalition claimed that the new policy would “threaten thousands of innocent workers and lead to discrimination and massive workplace disruptions.” The major problem is that the new approach relies on somewhat faulty SSA data that could lead to the firings of hundreds of thousands of citizens and legal residents.

   Randal Johnson, vice president of the U.S. Chamber of Commerce, said, “It’s an attempt to enlist employers as immigration cops.”

   Breyer found that the “balance of harms tips sharply in favor of a stay” based on the questions raised and the potential for “irreparable harm” to be caused by allowing DHS to go ahead with its new policy. He called the new approach a “major change in DHS policy” that must comply with the Administrative Procedures Act and other Congressional requirements.

   Breyer stopped short of ruling on the merits of the lawsuit. However, he did seem to indicate that the coalition made some strong arguments that could impact the final outcome of the case.

   It is unclear whether DHS followed all the hoops necessary to enact such a major change in policy. Plus, it may not have the authority to make some of the claims that are in the letter since ‘safe harbor’ decisions would be up to Department of Justice (DOJ) to decide. Breyer pointed out that the DOJ has not verified this assertion.

   At the same time, Breyer rejected the coalition’s claims that the SSA database was so rife with errors that it should not be used as evidence of illegal employment. He also rejected the claim that federal workplace laws enacted in 1986 do not require employers to verify the work authorization status of new hires. 

   The court questioned the govern­ment’s assertion that the new policy would have a minimal cost or impact on businesses. Breyer wrote, “Thousands of employers would bear the ‘significant’ expense of complying with the rule’s new 90-day timeframe. 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.’ ”

   The court upheld that some employers might react by simply firing employees who are unable to resolve the discrepancy within 90 days even if the individual is actually authorized to work.

   Given the increase in foreign workers in the industry, many pallet companies likely would have received notices if the court had not acted to continue the injunction. Companies should work to develop standardized practices that are followed for all employees. This is one of the best ways to defend your company against discrimination lawsuits.

   It appears that the temporary reprieve offered last month will continue until at least sometime in 2008. Companies should take this time to get records, policies and procedures in order. Consulting legal counsel is a smart decision if you are considering any major policy changes or are unsure about the efficacy of existing procedures.

   A number of states and localities have introduced various measures involving workplace verification and hiring illegal immigrants. Arizona passed a law that requires all employers in the state to verify the work authorization status of new hires using the E-Verify software offered by the federal government. E-Verify is a free database service that uses federal government data to confirm the work status of new hires. The law is being challenged in court. Otherwise, it becomes effective January 1, 2008.

   Illinois has taken the opposite approach. It passed a law forbidding employers within its borders to use E-Verify. DHS filed a lawsuit against Illinois challenging its new rule.

   The federal government is talking about reducing the number of documents it allows for work authorization in an attempt to crack down on fraud. Additionally, the federal government plans to impose reforms to make the current H-2A work visa program more user friendly. This would benefit the agricultural industry in its attempt to gain legal immigrant labor for growing seasons. It doesn’t really help pallet companies, though.

   Meanwhile, the U.S. Immigration and Customs Enforcement (ICE) continues to crack down on illegals in the workplace. In fiscal 2006, the federal government had 716 criminal cases and over 3,600 administrative arrests. The government has well eclipsed those numbers for the current year. Recently, the government secured a guilty plea from an executive of a major U.S. firm; the settlement is expected to exceed $16 million.

   DHS Secretary Michael Chertoff said, “The bottom line — the days of treating employers who violate these laws by giving them the equivalent of a corporate parking ticket — those days are gone. It’s now felonies, jail time, fines and forfeitures.”

   Industry trade groups and labor organizations continue to work with the government to bring a more balanced solution to the country’s illegal immigration and workplace problems. Many states are getting into the act, too. The next few years will be interesting to see what shakes out. It will be important to stay informed and make the right moves based on legal counsel and your particular situation. What you can’t afford to do is ignore the issue — that is when you might find your business ICED.

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