The State of the SS No-Match Letter Rule

Immigration Rules Left In Limbo
It’ll be up to the courts to decide how, when or even if new worker verification rules are ever put into effect.

By Mark Willen, Senior Political Editor, The Kiplinger Letter
September 17, 2007
Immigration Rules Left in Limbo
Kiplinger Letter

Employers face more uncertainty and confusion on immigration rules -- perhaps for many months more, as federal courts grapple with complaints over the Bush administration’s plan to try to crack down on firms that hire illegals.

An unusual alliance has sued to block proposed new rules. A federal judge says the plaintiffs, comprising unions, businesses and civil liberties groups, may have a case. A hearing is scheduled for Oct. 1, and while the Bush administration says it’s confident it will prevail, other observers aren’t so sure the rules will survive without a major overhaul.

The Oct. 1 hearing won’t produce an instant solution. A decision will probably take some time and be subject to appeal. The U.S. Chamber of Commerce has asked the administration to declare a six-month delay and conduct another review of the rules, but so far, officials have declined to do so.

Before the court-ordered stay was issued, the new regulations had been scheduled to go into effect last week. The legal move blocked the Social Security Administration from sending out 140,000 letters a week to employers with 10 or more workers whose Social Security numbers don’t match those on file in Washington.

The letters explain that the new regulations give firms 90 days to clear up any mix-ups -- typos, misspelled names or changed names that were never recorded. Any workers whose numbers can’t be matched within the 90 days must be fired or the firm will be held accountable for knowingly and willfully hiring an illegal immigrant.

At the same time, the new regs increase penalties for hiring illegals and add criminal charges if a pattern of abuse can be proved. For years, the government has sent similar letters pointing out so-called no-match employees, but the letters were mostly advisory. Firms weren’t required to fire anyone and didn’t face penalties if they ignored the letters, which many companies did.

The AFL-CIO and the American Civil Liberties Union filed suit against the new rules, alleging that they would lead to discrimination against foreign workers and would result in the firing of thousands of innocent people. Then the U.S. Chamber of Commerce and a dozen other business groups joined the suit on the grounds that the administration had violated the Regulatory Flexibility Act by concluding that the new rules would impose no new or additional costs on firms with fewer than 500 employees. Democrats, meanwhile, say the administration is stepping on its toes, using the regulatory process to change law without going through Congress.

All this leaves employers facing what could be a long period in the dark. Some firms, particularly those in service industry sectors that rely on foreign workers, say the rules will lead to major worker shortages and outsourcing wherever possible. Already there are anecdotal reports of southern California farmers renting land in Mexico to grow crops. About 8 million foreign workers are here illegally.

Other firms say they’re tired of being told to do one thing one week and then another the week after. They just want some certainty so they can plan and not worry about inadvertently running afoul of the law.

Previously posted in the Huffington Post