This week, the Department of Homeland Security (DHS) announced
it plans to kill some responsible, reasonable workplace
verification rules. As a result, the department will perform
less--not more--workplace checks.
This announcement undercuts the claim that the department is
interested in "smart and tough" immigration enforcement.Effective
workplace enforcement is vital, as employment is the principal draw
for illegal immigrants to come to the United States. They come here
for the jobs. Enforcing workplace laws is a vital component to
create disincentives to unlawful immigration. Congress should not
authorize or fund efforts to scale back workplace enforcement.
What DHS Did: Giving the Green Light
to Employers to Hire Unauthorized Aliens
Homeland Secretary Janet Napolitano announced today that the
department intends to rescind the 2007 Social Security No-Match
Rule, a rule designed to clarify the obligations employers had with
respect to knowingly hiring unauthorized aliens.
No-match letters are not new and are a tested component of the
Social Security system, in use for nearly 30 years. The Social
Security Administration (SSA) is required to track workers' wage
histories and collects this information from the W-2 forms that
employers submit each year for each employee. Each year, the SSA
receives 8-11 million W-2 forms containing names and Social
Security numbers that do not match the information in its records.
In 1994, SSA started sending no-match letters to employers who
submitted 10 or more W-2 forms that could not be matched to SSA
records or who have no-matches for more than one-half of 1 percent
of their workforces. The majority of the individuals named in the
no-match letters sent to employers are aliens unauthorized to work
in the United States.
Under the Immigration Reform and Control Act of 1986 (IRCA), it
is illegal to "knowingly" employ an alien unauthorized to work in
the United States. However, some employers were uncertain as to
whether receiving a no-match letter amounted to constructive
knowledge that an employee was unauthorized to work. Many employers
took advantage of this uncertain state of affairs and did little or
nothing upon receipt of a no-match letter.
Therefore, in August 2007, the Immigration and Naturalization
Service (INS) promulgated a formal rule on no-match letters to
ensure greater uniformity of enforcement and to clarify the
definition of "constructive knowledge." The rule carved out a safe
harbor for employers who receive no-match letters and spelled out
what employers must do upon receipt of a no-match letter.
The new rule and guidance were an attempt to inform employers of
their obligations under IRCA and of the risk they run by turning a
blind eye to their employees' false or forged credentials.
Anti-enforcement groups were quick to protest, admitting that this
new approach would actually have an impact on illegal employment.
They sued, and in October 2007 a federal court issued a preliminary
injunction against enforcement of the rule on the grounds that DHS
did not sufficiently justify its change in policy among other
things.
Subsequently, DHS provided its justification for the change in
policy and amended the proposed rule in compliance with the court's
order. There is every reason to believe that the Administration
would ultimately succeed in court if it pressed forward with this
lawsuit. The amended proposed rule would become law, and employers
would have the specific guidance they need to be in compliance with
IRCA.
What DHS Did Wrong
Instead, the department said it will no longer seek to issue
revised no-match letters and rely solely on a "more modern and
effective E-Verify system." Through E-Verify, participating
employers can instantly check the work eligibility status of new
hires through a secure online service that compares information
from an employee's I-9 form against SSA and DHS databases. This
service is provided free to employers (though the individual
companies must bear the cost of providing the infrastructure and
people to enter the data). The system has proven to be quite
effective, and SSA and DHS continue to work to improve service,
reliability, and privacy protections.
The department also announced "the Administration's support for
a regulation that will award federal contracts only to employers
who use E-Verify to check employee work authorization." This is
unobjectionable and in fact merely a continuance of the previous
Administration's plans and not a new initiative.
E-Verify is an excellent program. It is, however, not mandatory
for all employers. Thus, the first consequence of not issuing
no-match letters--and failing to allow DHS to check the no-match
data compiled by SSA to identify employers who habitually scoff
workplace at immigration laws--is that DHS will be doing less
workplace enforcement, not more. In addition, it is not fully clear
whether this Administration will fully comply with the intent of
the previous Administration to apply E-Verify to all federal
contract employees.
If, for example, E-Verifywere applied only to new employees
hired specifically for the contract work, then for instance, if a
construction firm hires an unlawfully present individual and then
one week later assigns him to work on a federal contract project,
this unlawful individual would be considered an "existing employee"
not subject to E-Verify.This Administration must craft the E-Verify
rules to apply to all existing employees working for the federal
government (a rule in place in the Bush Administration) and
under federal government contracts; otherwise the result would be
less work place enforcement, not more. That is unacceptable.
Legalese
The DHS press release stated that the department was abandoning
"no-match" because it had been challenged in the courts and an
injunction was issued byDistrict Judge Charles Breyer. This
statement is at odds with an announcement last year by the
department when it proposed a revised rule on issuing no-match
letters. Then, the department argued "additional detail provided in
the proposal is enough to have the injunction lifted." In fact, the
Bush Administration amended the proposed rule consistent with Judge
Breyer's ruling, and there is every reason to believe that he would
be forced to lift the stay if this Administration pushed the issue
in court with him. Conversely, the press announcement did not note
that the department's efforts to have E-Verify apply to federal
contractors has also been challenged in court. Indeed, any efforts
at real workplace enforcement are likely to be challenged in the
courts. Offering court challenges as an excuse to make bad public
policy is unacceptable as well.
Moving Forward
One hundred percent verification of workplace enforcement is
already a requirement by law.In order to curtail illegal
immigration, this statute should finally be enforced by moving
toward requiring all employers to use E-Verify to confirm the
employment eligibility of all new hires and current employees.
Government policy should be based on the principles of
empowerment, deterrence, and information. It
should empower honest employers by giving them the tools to
determine quickly and accurately whether a new hire is an
authorized worker. It should hold employers free from penalty if
they inadvertently hire an illegal worker after following the
prescribed procedures.
Government should perform this verification in the most
efficacious manner possible, one that is cost-effective; protects
individual data and privacy; minimizes the burden on employers; and
addresses concerns over security, public safety, and enforcement of
workplace and immigration laws. Nothing less is acceptable.
E-Verify is an important component of this effort and must be
authorized as a permanent program and fully funded by the Congress
and its use expanded by the government as practicable. Unitl
E-Verify is more broadly adopted throughout the U.S. workforce,
E-Verify must be complemented by a robust no-match letter process
that assists employers by specifically spelling out their
obligations. By rescinding the 2007 no-match letter amended rule,
the Administration is effectively saying that it will not enforce
the law against employing illegal immigrants for the overwhelming
bulk of U.S. employers. It is giving employers of unauthorized
aliens legal cover and an excuse not to follow IRCA. The new policy
is an "open door" to hiring illegal immigration at a time of near
record-high unemployment among American workers.
Rather than kill 2007 amended rule on "no-match" letters, a far
better policy would be to retain the letter option and, in
addition, for the SSA to routinely share no-match data directly
with DHS. This can be done in a manner that does not risk
individual employees' sensitive information or civil liberties.
With this data, DHS could more efficiently target employers who
willfully hire unlawfully present labor.
Congress Must Act
The right approach to immigration enforcement is to combine
"no-match" letters and greater data sharing between DHS and SSA
with a reasonable and robust E-Verify program. The outline of the
plan announced by DHS today may in the not too distant future leave
America with neither. Consequently, Congress should:
- Reject the plan announced by DHS to abandon the 2007 amended
"no-match" letter rule;
- Establish in law the authority for SSA and DHS to routinely and
appropriately share SSA data in a manner that respects and
safeguards personal information and the right to privacy;
- Permanently authorize E-Verify and fund DHS to continue to
expand and improve the program;
- Require the department to issue a report explaining what is
meant by "smart and tough enforcement" and each component of its
workplace and immigration enforcement strategy;
- Direct the General Accountability Office to evaluate the
department's workplace enforcement strategy; and
- Defer major immigration or border security enforcement reform
legislation until the Administration implements a comprehensive,
suitable, feasible, and acceptable policy for workplace and
immigration enforcement.
It is the responsibility of Homeland Security to enforce the law
in a manner that is both reasonable and effective. This week's
announcement fails that test. Congress should not let it stand.
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 Foundation.