The Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security is charged with investigating entities that unlawfully employ workers without authorization. In 2009, this agency began focusing its reources on auditing and investigating employers and pursuing criminal penalties. In fiscal year 2009, ICE worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.
On April 21, ICE announced that a San Diego bakery, its owner and manager were indicted on federal charges for hiring undocumented workers. This case highlights the agency’s reliance on social security “no match letters” as evidence that workers are not authorized to work in the US. The bakery allegedly paid the workers in cash after receiving the no match letters until the workers produced a new set of employment documents with different social security numbers. This indictment should serve as a warning to all employers that ICE does pursue criminal charges against managers and owners of establishments in worksite enforcement investigations.
Please refer to the Worksite Enforcement Tab under Information on this website for more information and useful links.
Although the term “rescission of safe-harbor procedures” sounds like a negative, in fact, the Department of Homeland Security’s (DHS) rescission of these safe harbor procedures relieves employers of responsibilities that were onerous and had dubious impact towards meeting the administration’s goal of reducing unauthorized employment.
On August 15, 2007 DHS released the final version of the Immigration and Customs Enforcement (ICE) regulation, “Safe Harbor Procedures for Employers Who Receive a No-Match Letter.” These regulations greatly increased the burden on employers who received a social security “no match” letter or discrepancy notice from DHS to take certain steps or face criminal and civil liability for unlawfully employing individuals without employment authorization.
Unfortunately, this proposed DHS regulation made the law more unclear for many employers. How many no-match letters could they receive and have the employee “fix?” What if the employee brought back something that appeared genuine with a different name? Employees were also caught in the middle. Many employees would be the subject of these letters based on a name change due to marriage, a typographical error or for some other innocuous reason. And forget about having the Social Security Administration (SSA) fix the error in the 90 days prescribed by the regulation. In the lawsuit challenging the rule, the former Secretary of the Social Security Administration stated that it would be close to impossible to get an error fixed in the database and provide an individual with the proof needed to satisfy the regulation within 90 days.
All I can say is good riddance to this “safe harbor.”
The immigration debate is emotionally charged. This was certainly evidenced when South Carolina Representative Joe Wilson accused President Obama of lying when he stated that his health care reform bill did not apply to illegal immigrants.
Obama’s health care plan is certainly sweeping and controversial in its own right, but Rep Wilson’s outburst brings up the point that immigration reform also must be addressed. By simply excluding immigrants from his reform proposals, Obama is looking at half the problem. Policies that restrict immigrants’ access to health care such as preventive services lead to the inefficient use of emergency room and other costly services. The economics behind immigration and health care are addressed in the report by the Immigration Policy Institute, entitled, Unequal Accecss: Immigrants and US Health Care.
Dr. Sarita Mohanty, a professor of medicine from the University of Southern California , the author of the report, explains that although immigrants comprised 10 percent of the US population in 1998, they accounted for only 8 percent of US health care costs. Further, she documents that, “despite the fact that all immigrants are eligible for emergency medical services, they had lower expenditures for emergency room visits, as well as doctor’s office visits, outpatient hospital visits, inpatient hospital visits, and prescription drugs.”
Although this report focuses on immigrants and health care, it captures the essence of the immigration debate by underscoring the importance of immigrants to our economy and to our nation. Even pushing aside the fact that we are a nation of immigrants, as besides the Native American’s our ancestors all hail from other nations, the hard facts speak to the importance of immigration. Not only to illegal immigrants perform jobs that native born Americans cannot and will not do, they also contribute to paying taxes and paying into the Social Security system for benefits they will never collect. In 2001, the Social Security Administration (SSA) found that undocumented immigrants pay a major portion of taxes into the Social Security system under names or social security numbers that don’t match SSA records and which payees can never draw upon. As of July 2003, these payments totaled $421 billion.
It’s time to give undocumented immigrants an earned path to legalization so they can obtain health insurance and continue to contribute to our country, rather than focusing the health care debate on a broken immigration system.
Julie Myers Wood, the former head of US Immigration and Customs Enforcement, has no clue what it is like for an employer trying to run a small, or even large, business. In her recent article, Nice Guys Finish Last, she describes an overly simplistic world of employers who are trying to do “good” by only employing lawful workers and others who can underbid those “good” employers by knowingly hiring workers who are not authorized to work in the United States. She criticized the Department of Homeland Security of “dropping the social security no match rule” which placed the burden on employers who received social security no match letters to have the error corrected or risk liability for employing an individual unlawfully.
When I meet with my corporate clients, they are trying to wade through the countless regulations and laws that relate to employment authorization, discrimination, and unfair employment practices. These employers are the “nice guys” who want to follow the law, but don’t know which laws to follow. They know that by asking for a specific document in an I-9 context, they may have an unfair employment practice claim. They know that if they unduly question only the hispanic looking applicants, they will have a discrimination claim on their hands. They also are advised by me that the legacy INS has previously stated that a social security “no match” letter alone is not evidence that an employee is not authorized to work in the United States. I have also advised them that the former Secretary of the Social Security Administration, admitted that there was no possible way that his agency would be able to correct a legitimate error within the 90 days allowed by the social security no match law.
So what are employers to do with the smattering of laws and regulations that make them scared of their own shadows? Well, for once, the government has recognized this dilemma and decided the no-match regulation was unfair to employers (not to mention the employees who would have been wrongfully terminated due to simple errors in an imperfect system). It’s good thing Julie Myers Wood is not in charge of US Immigration and Customs Enforcement any longer.
Worksite Enforcement | melissa | 
April 27, 2010 9:51 pm | 
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