SSA No-Match Letters Blocked by Judge in San Francisco

Rules wasn't made on basis of the errors in the SS system, but on the possibility of "irreparable harm" to workers and employers.

This will hold for a while until Chertoff formally appeals. The way the SS no-match has been recieved so far by judges, there may be a good chance it will never come to pass.


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Judge blocks effort to use no-match letters to fire illegal workers
San Francisco Chronicle
Bob Egelko, Chronicle Staff Writer
Thursday, October 11, 2007

A federal judge in San Francisco on Wednesday blocked the Bush administration's attempt to enlist the nation's employers to banish illegal immigrants from the workplace.

Saying the administration's plan "would result in irreparable harm to innocent workers and employers," U.S. District Judge Charles Breyer barred authorities from threatening to prosecute businesses that fail to fire employees whose Social Security numbers don't match government records.

Breyer's preliminary injunction is likely to keep the proposal on hold until sometime next year.

...The injunction is binding until the case goes to trial, a proceeding that is many months away. But the administration is virtually certain to ask the Ninth U.S. Circuit Court of Appeals in San Francisco to overrule Breyer and let the new system take effect while it is being challenged. The court might act on such a request by the end of this year.

Homeland Security Secretary Michael Chertoff, whose agency issued the rule requiring employer notification, said the administration is considering an appeal.

The premise of the rule, he said in a statement, is that "employer diligence will make it more difficult for illegal aliens to use a Social Security number to get a job."

But Lucas Guttentag, chief immigration lawyer for the American Civil Liberties Union, which helped represent the unions in a lawsuit challenging the rule, said the plan's fatal flaw is its reliance on error-filled Social Security records that could lead to the firings of hundreds of thousands of citizens and legal residents.

The administration "showed a callous disregard for legal workers and citizens by adopting a rule that punishes innocent workers and employers under the guise of so-called immigration enforcement," Guttentag said.

Chertoff announced the new rule in August to toughen a 1986 immigration law's little-enforced provision banning businesses from knowingly employing illegal immigrants. The administration adopted the rule a year earlier but kept it on hold until after a comprehensive immigration bill died in Congress in June.

Under the new regulation, the government planned to send warning letters this fall to 140,000 employers with a total workforce of more than 8 million. Officials said those employers typically had at least 10 workers whose Social Security numbers on W-2 tax forms did not match the government's database.

The so-called no-match letters would give the employer 90 days to resolve the discrepancy and an additional three days for an employee to submit a new, valid number. After that, an employer who failed to fire the worker would be subject to civil fines or criminal prosecution.

The suit by the AFL-CIO and other unions, filed Aug. 29, drew support from major business groups. They said the new rule would force employers - who now rely on immigration documents presented by job applicants - to set up expensive new systems to verify workers' immigration status in an impossibly short time.

"It's an attempt to enlist employers as immigration cops," Randy Johnson, vice president of the U.S. Chamber of Commerce, said Wednesday. While such an effort is not necessarily improper, Johnson said, the administration's plan would do little to clear up employer confusion about no-match letters and would snare large numbers of legal employees along with the undocumented.

...Many legitimate workers would be unable to locate records within sprawling federal agencies and clear up discrepancies within 90 days, the unions said. They said the rule also would prompt employers to fire, or refuse to hire, legal workers with foreign names or appearances.

Breyer said the unions' prediction is plausible.

"There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days, even if the employees are actually authorized to work," he said.

..."Needless to say, this change in position will have massive ramifications for how employers treat the receipt of no-match letters," Breyer said.

In addition, Breyer said, Homeland Security lacked legal authority for a statement in the letter that assured employers that the government would not sue them for discrimination if they fired workers because of unresolved no-match letters. There has been no such assurance from the Justice Department office that is responsible for such suits, Breyer said.

The judge also said he has "serious doubts" about the department's assertion that the new rule would not impose a significant burden on small businesses. Federal law requires the government to conduct a study of costs and alternatives when a new regulation causes such burdens.

E-mail Bob Egelko at begelko@sfchronicle.com.

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