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September 6, 2007
By James Jay Carafano, Ph.D.
In response to a lawsuit filed by the AFL-CIO, ACLU, and
National Immigration Law Center, a federal judge last week issued a
temporary restraining order blocking the Department of Homeland
Security (DHS) and the Social Security Administration (SSA) from
mailing new "no-match" notices to employers. These notices are sent
when employers hire new workers whose personal information (e.g.,
name and social security number) does not match SSA records, and
they provide detailed guidance to employers of their legal
obligations and the steps that they should take in response to a
no-match. Fair and practical workplace enforcement is vital to
reestablishing the integrity of American immigration law. The
obstacles thrown in the path of the Administration's recent
enforcement efforts offer a lesson to Congress about what needs to
be done to enforce U.S. laws while ensuring America's employers
have access to the workers they need.
The DHS and SSA use no-match letters as an immigration enforcement
tool. In 2005, SSA mailed out about 10.5 million no-match letters,
and by some estimates, upwards of 90 percent of these concerned
workers who were not legally entitled to be in the United States.
Under the Administration's new no-match rules-now
enjoined-employers not complying with no-match letters' guidance
would have faced fines.
The new notices blocked by the court appear to do little more
than consolidate existing DHS and SSA policies and do not create
any new requirements. Rather, they provide guidance to responsible
employers on reasonable measures to do the right thing: respect the
rights of individual employees while providing a reasonable means
to avoid unintentionally hiring unlawfully present persons.
In response to the lawsuit's allegations, DHS says that the new
process is practical. Under the new rules, legally present
employees and their employers have 90 days to correct their
information without being unduly inconvenienced. DHS estimates that
the number of individuals required to reconcile no-match data in
this way will be modest and manageable. In addition, employers who
follow the new procedures would be granted a safe harbor from
prosecution for willfully violating workplace enforcement laws.
Blocking the new procedures will, in some respects, put American
employees at greater risk. The new procedures would have helped
legitimate workers to correct their data and thereby ensure they
and their families were not wrongly denied benefits or made victims
of identity theft. That specific avenue is no longer open to
The lawsuit also offers Congress a cautionary lesson on what
would have happened if a comprehensive immigration and border
security bill that put amnesty first had passed. Enforcement
measures would have been litigated extensively, while amnesty would
have allowed millions to benefit from having violated U.S. laws,
undermining any notion that the government could or would enforce
immigration laws in the future.
The Next Steps
Though the Administration should receive praise-rather than
lawsuits-for trying to do the right thing, even proponents of
enforcement acknowledge that merely issuing clear no-match guidance
is not the optimum enforcement tool. A far better policy would be
for the SSA to routinely share no-match data directly with DHS.
This can be done in a manner that does not put individual
employees' sensitive information or civil liberties at risk. With
this data, DHS could more efficiently target employers who
willfully hire unlawfully present labor.
But there is a dispute, present even within the Administration,
over whether DHS may automatically receive no-match data under
existing law. The Administration should request the Department of
Justice's Office of Legal Counsel issue a ruling on this matter.
Meanwhile, Congress should pass legislation specifically
authorizing SSA/DHS information sharing. This would demonstrate
that Congress is serious about seeing laws enforced and show its
support for the Administration's enforcement efforts.
Congress also should provide further protection from
frivolous private suits against employers by unions and others
claiming to represent employee groups. A good policy would be to
make employers immune from liability (except perhaps job
reinstatement) for good-faith actions to comply with immigration
Meanwhile, DHS should continue to provide clarifying guidance to
employers with legitimate concerns about how to comply with the
laws that they have long ignored, including the option to
participate in E-Verify, an online tool for checking Social
Security numbers and correcting no-match errors.
James Jay Carafano,
Ph.D., is Assistant Director of the Kathryn and Shelby Cullom
Davis Institute for International Studies and Senior Research
Fellow in the Douglas and Sarah Allison Center for Foreign Policy
Studies at The Heritage Foundation.
Next steps for Congress and the Administration after a federalcourt enjoins new workplace enforcement measures.
James Jay Carafano, Ph.D.
Vice President, Foreign and Defense Policy Studies, E. W. Richardson Fellow, and Director
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