DHS No-Match Letter Regulation Temporarily Blocked--But Probably Not For Long
On October 10, 2007, Judge Charles R. Breyer of the U.S. District Court for the Northern District of California issued a preliminary injunction that, for now, will continue to prevent the Department of Homeland Security (DHS) from proceeding with its new "no-match" regulation. Following Congress’ sorry failure to pass comprehensive immigration reform this past summer, the Bush Administration enacted the new no-match regulation in an effort to shift much of the burden of enforcing existing immigration laws against the hiring of illegal aliens from the government to private employers.
While I understand the Bush Administration’s desire to get at enforcement one way or the other, this new reg is not the answer. The problem is that the Court’s ruling is really only a temporary stay and it just delays the inevitable day when private employers are forced to become enforcers of federal immigration law—something that should be the government’s job. The comprehensive immigration problems we have in the United States require comprehensive immigration reform in particular giving illegal aliens a path to residency and eventual citizenship.
Basically, no-match letters are often generated when an employer sends a W-2 form to the government reporting the name, social security number and earnings of an employee to the government, but the name and/or the social security number don’t match the government’s records. About 8 to 11 million no-match letters go out to U.S. employers every year.
Obviously, any number of these no-match letters involve aliens who are in the U.S. illegally and who are working without proper authorization. Under current law, a U.S. employer must verify, through the use of the I-9 form, that a prospective employee really is who they say they are and that they are legally allowed to work. The employee has to present certain documents as part of the I-9 process. Some documents establish both identity and work authorization (such as a U.S. passport or a green card) and other documents separately establish identity (such as a driver’s license) and work authorization (such as a social security card). When the prospective employee presents the documents, the employer must accept them as valid if they reasonably appear to be genuine. Of course, the employer must act in good-faith in accepting the documents; if the employer has actual knowledge that the employee does not really have work authorization, it’s not a defense that the documents “appeared” to be genuine.
This is where the new reg comes in. The new reg provides for certain “safe-harbor” investigative provisions that an employer would follow if it received a no-match letter. The safe harbor provisions essentially involved going through the identity and work authorization process all over again. In this second go-round, however, if the discrepancy could not be resolved, the employer would not have much choice but to fire the employee.
Following the safe harbor provisions is not technically mandatory under the new reg but effectively it is. By not complying with the safe-harbor provisions, the employer would be opening itself up to a charge of “constructive knowledge” of an illegal hire simply by having received the no-match letter. No more good faith defense.
As Judge Breyer pointed out in his ruling, the problem with the reg is that there are lots of reasons why a no-match letter might be sent including simple typographical errors and the costs to employers would be “significant” and its effects would be “severe”. Even an ex-Commissioner of the Social Security Administration testified that there would be many legally authorized workers who would not be able to resolve a mismatched earnings report by the deadlines imposed under the reg. Judge Breyer wrote: “. . . there is a strong likelihood that employers may simply fire workers who are unable to resolve the discrepancy within 90 days, even if the employees are actually authorized to work.”
Of course, the government may file an appeal and it seems inevitable that the burdens imposed by this regulation on both employers and employees will some day, very soon, be enacted in a way that survives judicial scrutiny. It’s equally clear though that this effort is a poor substitute for comprehensive immigration reform.
