Sterling Law Office’s immigration attorneys report that a federal judge in San Francisco has temporarily blocked implementation of a new Department of Homeland Security (DHS) rule regarding “no match” letters, set to have been effective in September. The new rule could cause U.S. citizens and other authorized workers, including those living in northern Michigan, to lose their jobs if their employers receive a Social Security Administration (SSA) notice that the employee’s Social Security number and name do not match federal records. The new court order from federal District Court Judge Charles Breyer delays the rule that would expose employers in northern Michigan and throughout the U.S. to prosecution, if the employers refuse to fire “no match” workers.
“If allowed to proceed, the mailing of no-match letters, affecting more than 8 million workers…would result in irreparable harm to innocent workers and employers,” Judge Breyer ruled.
The federal lawsuit against the new rule, filed by AFL-CIO, ACLU, and other labor/immigration groups in the San Francisco area, charges that the misguided rule violates the law and workers’ rights, imposes burdensome obligations on employers, and will cause discrimination against workers who are perceived to be immigrants. Furthermore, the plaintiffs charge, the “no match” letters are filled with errors.
“More than 70 percent of SSA discrepancies refer to U.S. citizens, but the DHS regulation would encourage employers to fire any worker based on these erroneous discrepancies, especially if she has an accent or is perceived to be foreign-born,” said John Sweeney, president of the AFL-CIO. The court will issue a final decision on implementation of the new rule, possibly after a trial
For years the SSA has sent “no match” letters to employers if the name and Social Security information reported by a worker on a W-2 form does not match up with the information contained in SSA databases. The “no match” letters were never considered proof that an employee did not have permission to work in the U.S, and currently employers who receive “no-match” letters are not required to take any action at all. There are many innocent reasons for such discrepancies, such as clerical mistakes, name changes due to marriage and divorce, and the use of multiple surnames that are common in many parts of the world.
Under the new DHS rule, employers receiving “no match” letters might be required to fire employees whose SSA discrepancies are not resolved within 90 days after the employer receives the “no match” letter. If the employer does not respond to a “no match” letter, DHS may conclude that the employer had “constructive knowledge” that an employee was not authorized to work in the U.S., and may prosecute the employer accordingly. The rule places employers in the untenable position of firing valued employees, violating discrimination laws, or breaking the rule.
“This is only one single measure in a whole bucket full of measures,” said Homeland Security Secretary, Michael Chertoff. “We’re going to continue to turn the heat up on employers who knowingly and systematically violate the law.”
However, the problem with this rule is that it also ensnares innocent employers and workers in its wide net.
Sterling Law Office will continue to monitor developments in this matter. Our immigration attorneys stand ready to assist northern Michigan employers and workers to comply with all, increasingly complex immigration laws. More reading on the federal lawsuit against the “no match” rule may be seen at www.aclu.org/nomatch
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., October 15, 2007.
The information presented in this article is for general information only and should not be construed to be legal advice.