November 1, 2007

In August, the Department of Homeland Security (DHS) announced a sweeping immigration initiative that included tough new worksite enforcement provisions and increased employer responsibility for their employees’ possible improper use of Social Security numbers.   The rulemaking was largely in response to Congress’s failed attempts to pass comprehensive immigration reform legislation in 2006 and 2007.

Important employer provisions of the rulemaking include:

• “No Match” Regulations – In cases in which an employer has a significant number of employees with inaccurate personal identity information, the Social Security Administration (SSA) will send the employer a “No Match” letter.  Employers have 90 days to resolve discrepancies between the Social Security number given by an employee and government records.  DHS and SSA would provide the employer with error-checking procedures to follow.

• Increased Employer Penalties – Fines against employers for violating immigration laws will be raised about 25%.  Currently, the maximum fine is $10,000 per violation.  The government will also step up criminal prosecutions against employers.  In fiscal year 1999, the government filed criminal charges against only 24 employers; already in fiscal year 2007, DHS has filed more than 742 criminal cases.

• Reduction in Official Documentation – In the next few months, the department will reduce the number of legal documents used to confirm identification and work eligibility.  Currently, 29 types of documents can be used to verify eligibility, which makes it hard for employers to judge their authenticity.

• New E-Verify Requirements – DHS also plans to require all 200,000 federal contractors to use an electronic employment verification system (“E-Verify” formerly called “Basic Pilot”) to make sure their employees are authorized to work in the United States.  This requirement will have to go through the regulatory process before its official implementation.

DHS’s proposal also includes measures to strengthen border security with additional personnel and infrastructure and to streamline the guest-worker program and existing immigration procedures.

In October, a federal judge delayed the implementation of the DHS’s “No Match” rule.  The preliminary injunction was issued after several unions and the U.S. Chamber of Commerce filed a lawsuit against the agency.   The lawsuit claims the rule would put undue strain on small businesses and could lead to the firing of thousands of legal workers based on their nationality.  The preliminary injunction is in effect until the case goes to trial, which is still several months away.   

The rulemaking has the potential to negatively impact small businesses that do not have the resources to reconcile the “No Match” letters.  Instead, business owners may choose to fire employees cited on a “No Match” letter to safeguard against any worksite enforcement actions.  Opponents also argue that the regulations will create a disastrous ripple effect in the U.S. economy and disrupt the lives of an estimated 12 million undocumented people in the United States.

>For more information on this DHS initiative and worksite enforcement provisions, read the following fact sheet:  http://www.dhs.gov/xnews/releases/pr_1186757867585.shtm  Please contact Alicia Oman in the NADCA Washington Office (202/898-1444 or ao@wafed.com) with any additional questions.