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October 15, 2007
By James Jay Carafano, Ph.D.
This week, Charles R. Breyer, a federal judge for the Northern
District of California, issued a ruling in San Francisco
indefinitely delaying efforts by the Department of Homeland
Security (DHS) and Social Security Administration (SSA) to issue
guidance to employers and employees on how to resolve Social
Security "no-match" data. The Administration intended the guidance
to strengthen workplace enforcement, making it more difficult for
persons unlawfully present in the United States to illegally obtain
work. In addition, the guidelines would have helped U.S. persons
ensure that they were not wrongly denied benefits or were victims
of identity theft.
Ensuring the credibility of workplace immigration enforcement
and SSA administrative practices is important. Rather than wait for
the resolution of a protracted court battle to resolve the issue,
Congress should cut the Gordian knot and demonstrate that it is
serious about enforcing immigration laws, protecting the integrity
of the Social Security system, and safeguarding the rights of U.S.
persons. Congress should craft legislation that specifically
authorizes SSA to routinely share no-match data directly with
Why No-Match Matters
SSA mails notices when employers hire new workers whose personal
information (e.g., name and Social Security number) does not match
that in SSA records. DHS and SSA planned to send employers detailed
guidance on their legal obligations and the steps that they should
take in response to a no-match.In 2005, SSA mailed out about 10.5
million no-match letters, and by some estimates, upwards of 90
percent of those concerned workers who were not legally entitled to
be in the United States.
If DHS had adequate access to SSA no-match data and data on
stolen Social Security numbers, the department could do its
job better. Within a few years, DHS could feasibly target one-third
of the illegal workforce--close to five million
The Right Strategy
For starters, the Administration should press its legal
authority to issue the new guidance letters. DHS has made a strong
case that the new guidance is legitimate and practical; indeed, it
will create important benefits for both employers and employees,
such as ensuring that family members are not wrongly denied death
benefits because of administrative errors that might have occurred
in the initial information supplied by an employer to SSA.
The Administration should also press for additional authorities.
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
that willfully hire unlawfully present labor. Allowing the sharing
of no-match data and giving DHS the resources and authority to
target large-scale employers in the sectors of the economy where
undocumented workers are most present (e.g., agriculture, services
industries, and construction) would provide incentives and
enforcement measures to wean employers from the shadow
workforce. These steps also comprise a set of tools that could
be implemented quickly; in conjunction with increased border
enforcement and legal alternatives for South-North migration, these
tools would allow the government to redress the balance between the
attractiveness of legal and illegal entry into the United States
now--not years in the future.
There is a dispute, even within the Administration, over whether
DHS may automatically receive no-match data under existing law.
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 efforts to do so.
James Jay Carafano,
Ph.D., is Assistant Director of the Kathryn and Shelby Cullom
Davis Institute for International Studies and Senior Research
Fellow for National Security and Homeland Security in the Douglas
and Sarah Allison Center for Foreign Policy Studies at The Heritage
Rather than wait for a court battle to resolve the issue, Congressshould craft legislation making it more difficult for personsunlawfully present in the United States to illegally obtain work.
James Jay Carafano, Ph.D.
Vice President, Foreign and Defense Policy Studies, E. W. Richardson Fellow, and Director
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