Update in the Battle Over "No Match" Letters
With all of the organizations and individuals affected by the new immigration laws, varying parties have been taking actions in an attempt to prevent the new penalties from going into effect. These are the most recent and significant events taking place around the country.
San Francisco - October 10 – Federal Judge Charles Breyer ruled in favor of businesses and their workers Wednesday when he granted their request to block the Social Security Administration and the Department of Homeland Security from issuing joint “No Match” letters indefinitely.
Judge Breyer wrote in his ruling that, “The plaintiffs have demonstrated they will be irreparably harmed if DHS is permitted to enforce the new rule.” He chastised DHS for implementing such a policy change without giving a legal explanation or conducting required survey concerning costs and impacts on small businesses. He further ruled that the government failed to follow proper procedures for issuing a rule that would require employers to fire workers with unverified Social Security numbers after 90 days.
For complete details, select one of links below to be redirected to the following newspaper articles:
San Francisco - October 1st – At a hearing held today in regards to the legality of new “No Match” rules, Judge Charles Breyer of the Federal District Court extended the temporary restraining order an additional 10 days and strongly suggested that he was leaning against the government. After two hours of questioning both parties in the case, Judge Breyer commented that, “It is clear to me at this point there would be irreparable harm to the plaintiffs. It seems to me looking at it that this is a potentially enormous burden on the employer.” For more details, select the link below to be directed to the New York Times story on this hearing.
http://www.nytimes.com/2007/10/02/us/02social.html?_r=1&oref=slogin
San Francisco - August 31st - U.S. District Judge Maxine Chesney issued a temporary restraining order (TRO) barring the Social Security Administration (SSA) from sending “no match” letters to employers. Those letters were expected to begin being mailed to approximately 140,000 employers starting September 4th and the new penalties to be implemented September 14th.
The TRO was issued in regards to a lawsuit filed by the AFL-CIO last week. In that suit, the AFL-CIO maintains that the new Department of Homeland Security (DHS) rules threaten to violate workers’ rights and place unfair burden upon employers. They further charge that the new rules could inadvertently cause harm to legal workers and businesses abiding by the law and cause the unfair firing of legal workers.
According to District Judge Chesney, the TRO was issued because of the court’s need for “breathing room” before making any decision on the legality of the new DHS penalties. A hearing has been set for October 1st.
Washington D.C. - August 27th - The Essential Worker Immigration Coalition (EWIC), consisting of more than 40 national and state business groups, sent SSA and DHS letters requesting a stay in implementation of at least 180 days. Their concern focused on the growing confusion within the business community as to how to comply with new “No Match” rules. The letter included a list of 82 critical questions the EWIC has compiled from members. A copy of that letter can be found at the EWIC website or by selecting the link below.
EWIC Letter to DHS and SSA: http://www.ewic.org/LettersofCongress.asp
Department of Homeland Security Issues New Rules For “No Match” Letters
On August 10, the Bush Administration in combination with the Department of Homeland Security announced new rules and regulations to be implemented in an attempt to crack down on illegal immigration. These rules were officially issued in the Federal Register on August 15, 2007 and will go into effect September 14, 2007. Amongst those rules are new requirements for employers who receive “no match” letters that could possibly affect ORA members.
In the past, when an employer receives a “no match” letter from the Social Security Administration (SSA) that letter is viewed simply as an informative tool. If an individual turns out to be unauthorized to work in the United States it cannot be assumed that the employer knew that individual was illegal simply because there was a “no match” letter issued. However, under the new rules, the Department of Homeland Security (DHS) expands its definition of “knowing” to include the receipt of such a letter from DHS or SSA. If an employer receives a “no match” letter and fails to take “reasonable steps” to resolve the issues DHS can decide to use that letter as evidence of “constructive knowledge” of a violation of immigration law during any civil or criminal action.
Along with the above change in definition, DHS has made changes to an employer’s requirements for taking action otherwise known as the “safe harbor” process. Employers having received a “no match” letter have a total number of 93 days to resolve the issue. Any employer who does not settle the matter by the end of the allotted 93 days will be faced with the decision to either terminate employment or continue employment with a risk of being found in violation of immigration laws. Those new “safe harbor” requirements are as follows:
Timing of Actions Under New Rule |
| Action |
Time Period |
| Employer receives letter from SSA or DHS indicating mismatch of employee name and social security number |
Day 0 |
| Employer checks own records, makes any necessary corrections of errors, and verifies corrections with SSA or DHS. Employer makes note of manner, date, and time of verification. |
0-30 Days |
| No error is found; employer notifies employee and asks them to verify information. If information is correct employer asks the employee to pursue the matter personally with the relevant agency. If necessary, employer corrects own records and verifies correction with SSA or DHS. |
0-90 Days |
| Matter is still not settled; employer may verify identity and authorization by completing a new I-9 form. Documents other than those in question must be used. |
90-93 Days |
| “No Match” still not resolved; employer must decide to maintain or terminate employee |
93+ Days |
In a press release on August 10, the National Restaurant Association expressed its concern with this new system. They stated that, "The proposed changes fail to address the larger problem in our country which is the broken immigration system. There is a great need for comprehensive immigration reform which includes an employee verification system that is workable for both small and large businesses; an improved new worker program; and a pathway to legal status for the undocumented currently living in the United States. In the absence of Congressional action, we expected an increase in enforcement pressure on business at the federal, state and local level, and unfortunately this is coming to pass. We are concerned that the new regulations will result in employers in numerous industries having to let workers go as the economy is facing an increasingly tight labor market."
ORA agrees with those concerns addressed by NRA and encourages immigration reform that is fair and workable to all parties involved. These new regulations do little to address the current problems within the system and place a burden upon small and large businesses that could end up being extremely costly.
For further information contact ORA Government Affairs at (505) 682-4422 or view information at one of the following websites.
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