Judge Says "No Way" to No-Match Letters

Carl Horowitz
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Posted: Sep 18, 2007 9:57 AM
Judge Says "No Way" to No-Match Letters

That labor unions have become champions of the right of illegal immigrants to remain in this country is hardly news. Back in 2000, the AFL-CIO, pushed by its president, John Sweeney, issued a statement supporting unconditional amnesty for illegal workers and their families. It was the culmination of a national campaign by organized labor to demand our government legalize the status of millions of "undocumented" workers.

But Sweeney and other federation officials want to do more than simply issue press releases and pass resolutions. Last month, they went to federal court in San Francisco to help block a new Bush administration rule from taking effect. On August 31, they scored an initial victory. U.S. District Judge Maxine M. Chesney, a Clinton appointee, issued a temporary restraining order barring the Department of Homeland Security from mailing out notices to about 140,000 employers, covering about 8.7 million workers, warning them about suspicious Social Security numbers (SSNs). These "no-match" letters, as they are known, would indicate the penalties for failing to resolve paperwork discrepancies.

Phony Social Security numbers, like phony state driver's licenses, have been a major reason for high levels of illegal immigration over the past couple decades. DHS, aware of this, on August 10 issued a rule clarification.

The new rule would update a practice established more than 20 years ago, namely that employers must verify that employees have a valid Social Security number. This provision was part of the 1986 Immigration Reform and Control Act (IRCA), though it has been only sporadically enforced. Under IRCA, when employers file annual tax withholding reports, the Social Security Administration (SSA) matches the information to the name, address and SSN provided by the employee. Any mismatches are posted to the SSA's Earnings Suspense File, which contains seven decades' worth of employee data. Whenever an employer is notified of a discrepancy, he must notify the affected employee.

Now the Social Security Administration has found that up to 10 percent of all U.S. employees have suspect numbers. But a crackdown is harder than it looks. For one thing, fraud is only one reason for a potential mismatch. Other reasons include typographical errors, confusion over name changes, and multiple surnames (the latter problem especially prevalent among Asians and Hispanics). And mistakes are prevalent. According to a 2006 report by the SSA's Office of the Inspector General, 17.8 million of the agency's 435 million records contained at least one discrepancy. About 70 percent of the records in error corresponded to native-born U.S. citizens rather than immigrants, legal or otherwise.

The Department of Homeland Security, recognizing these problems, would give an employer 90 days to resolve a given mismatch. If he cannot, he must fire the employee or face penalties. DHS Secretary Michael Chertoff explained the plan is the centerpiece of the Bush administration's renewed immigration enforcement drive in the wake of the Senate's defeat this June of a bill to promote amnesty all but in name. The DHS had planned to send out the no-match letters during September 4-November 9 rather than all at once, so as to minimize the likelihood of burdening staff.

Some groups, like the American Civil Liberties Union, however, were not impressed. The ACLU filed suit in Judge Chesney's court, joined by the AFL-CIO and some top guns of Bay Area organized labor: the San Francisco Labor Council, the San Francisco Building and Construction Trades Council, and the Central Labor Council of Alameda County. Lawyers for the lead plaintiff allege that the no-match letters would violate workers' rights and unfairly burden employers. "It's a critical and very significant first step in the first legal challenge of this rule," said Lucas Guttentag, national director of the ACLU's Immigrants' Rights Project.

AFL-CIO President John Sweeney was every bit as adamant. "This rule is a new tool to repress workers' rights in the name of phony immigration enforcement," he said. Sweeney added that the rule would give employers a pretext for firing workers who try to organize, report a wage claim or get injured on the job.

Leading business groups, such as the U.S. Chamber of Commerce and the National Restaurant Association, also expressed grave doubts. Calling the no-match rule clarification "outrageous," the Chamber of Commerce asserted that enforcement would trigger massive workplace disruptions and plant closings. The groups pressed the Bush administration for a six-month delay and answers to up to 80 questions related to statutory compliance.

Homeland Security officials counter that the organized opposition is a smokescreen for a refusal to get serious about shedding payrolls of illegal workers. "This lawsuit is an obvious attempt to impede the department's ability to enforce our immigration laws," said DHS spokesman Russ Knocke. "It is completely without merit and we intend to fight it vigorously." He added that fears of massive civil-rights violations among employers are overblown. "The rule assures employers that if they follow the procedures laid out, they can avoid liability," Knocke remarked. "Those employers who disregard no-match letters in the future should expect serious consequences." Those consequences include criminal prosecution and/or fines of between $2,500 and $14,000 per worker.

Let it be said that the Bush administration has never been serious about immigration reform except when prodded by an aggrieved public. President Bush's ceaseless advocacy of providing illegal workers with a "path to citizenship" -- i.e., amnesty -- properly raises suspicions that the DHS plan is mere window dressing to placate critics. That said, once logistical and civil-liberties concerns are fully addressed, the no-match letters should go out as soon as possible. For too long, the prospect of obtaining a fake ID has been a lure for persons abroad, most of all from Mexico, to live here in violation of our laws and sovereignty.

Judge Chesney says the court needs "breathing room" before deciding on the DHS rule clarification and mailings. Her ban will be in effect until October 1, at which point another federal judge will consider whether to extend it. Organized labor officials in the meantime can ask themselves whether their own interests, and those of the nation, are well-served by encouraging people to enter America illegally or overstay a temporary visa -- presumably to take jobs Americans won't do.