The Department of Homeland Security (DHS) recently released a revised version of its rule outlining employers’ legal obligations when an employee is identified by the Social Security Administration as a possible illegal immigrant. The revised rule shows few changes from a previous version that was stopped by a Northern California district court judge in 2007.
The rule requires employers to follow a specific set of procedures if they receive a letter from the Social Security Administration(SSA) stating one of their employees’ tax forms did not match his or her Social Security records.
The Social Security Administration for years has put in their letters sent to employers that receiving the letter is not meant to make any implication on the immigration status of the employee, said Evelyn Sanchez, advocacy coordinator for Bay Area Immigrant Rights Coalition.
In 2006, however, the SSA changed the language on the letters to inform employers that a possible reason for receiving the no-match letter is that the employee is an illegal immigrant using false documents, Sanchez said.
The rule instructs employers to take specific actions laid out by the DHS in order to avoid being prosecuted for hiring illegal immigrants.
We are serious about immigration enforcement. The No-Match Rule is an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need, saidHomeland Security SecretaryMichael Chertoff in a press release.
The revised rule shows no large policy changes from the previous rule but does provide a more detailed account of how DHS developed the No-Match policy.
The main difference is that DHS offered a reasoned analysis for why they feel that a no-match letter is sufficient to make an assumption on immigration status, Sanchez said.
Opponents to the rule include immigrants’ rights groups as well as labor unions and businesses. A coalition of these groups fought the rule in court on the grounds that the SSA often mistakenly sends out no-match letters due to database errors or workers changing their names. They argued the rule would result in hundreds of thousands of wrongful terminations.
U.S. District Judge Charles Breyer agreed that unjust firings were a possibility and issued an injunction against the rule in October 2007. He said in his ruling that DHS failed to explain its reversal of a 10-year-old policy of not using no-match letters as evidence of an employer’s knowledge of immigration statuses of employees, according to the court’s decision.
DHS feels that with its recent revision of the rule, it has adequately explained its reasoning and will be seeking to appeal the injunction. DHS disagrees that using no-match letters as a basis for implying immigration status is a policy change, but even if it is a change, the department said it is justified to give employers clear directions about how to handle no-match situations.
It is likely that a similar coalition of labor unions, business groups and immigrants’ rights groups will soon be challenging the revised rule on the grounds that there are no major differences, Sanchez said.
ALYSOUN BONDE can be reached at email@example.com.