In October of this year, a District Court judge in San Francisco issued an injunction stopping the government from applying a rule that would have made it much more difficult for undocumented aliens to work here. The efforts of the federal government to stop employers from hiring workers without the permission to work were dealt a temporary set-back when a court prohibited the government from enforcing its so-called “no-match letters”.
On August 15, 2007, the Department of Homeland Security (DHS) issued a new rule that created an enforcement procedure for ensuring that workers have a legal right to work. It called for the DHS and Social Security Administration (SSA) to share their database of information about employees and immigrants in this country. It would have subjected employers to fines and even jail if they failed to respond to government inquiries about the legal status of a worker.
The SSA has for many years issued letters informing employers when the social security numbers reported for their employees do not match the records of the government agency. These “no-match” letters have up until now been largely ignored. No effort was made to follow up these letters with enforcement of the law, until this recent regulation.
Under the new DHS rules, if an employer gets a no-match letter, it must take action within 90 days to resolve the issue with the SSA. If the employee cannot prove to the employer that his social security number is valid within that period, then the employer is supposed to fire the employee or face significant fines. In some cases, the employee would have to be terminated even if the employee’s social security number is valid and the SSA’s information is in error.
The new law was challenged in court by a coalition of business and labor groups in the case of American Federation of Labor v. Chertoff, filed in U.S. District Court in San Francisco. The plaintiffs argued that the law was arbitrary and capricious, and could result in the termination of employment of U.S. citizens due to the inadequate safeguards provided by the compliance system. The government defended the law as necessary for national security and enforcement of the immigration laws.
District Court Judge Charles Breyer in San Francisco agreed with the plaintiffs, finding the law does risk violating the rights of citizens and others with a valid right of employment. Until such time as the case moves forward to a conclusion, the judge has barred enforcement of the law by the DHS. This has provided at least a delay in implementation of this rule against employers.
Nonetheless, employers are still liable for hiring undocumented workers under the terms of other laws, including the 1996 Immigration Control and Reform Act. This subjects employers to both criminal and civil liability for knowingly hiring illegal workers. A number of large companies have been the target of recent raids by the DHS, resulting in mass arrests of illegal aliens and prosecutions of some employers.
Most likely, this court ruling is just a temporary delay in the government’s campaign to attack illegal immigration. There is a very vocal segment of our population that feels strongly about enforcement of the immigration laws and has put pressure on Congress and the administration to take action. Under the present political climate, immigrants and their employers can only expect continuously increasing government regulation and scrutiny of employment of non-citizens in this country, while the prospect of immigration reform seems ever more unlikely in the next several years.