Despite protests from businesses, organized labor, and immigrant-rights groups, the Homeland Security Department is pressing ahead with a controversial rule to use Social Security records to enforce immigration laws.
The department's bid, critics say, will harm legal workers and the U.S. economy without solving the problem of illegal immigration because it relies on inaccurate information. The rule, officially published on March 26, amounts to a politically motivated push by Republicans to crack down on employers who hire illegal workers, opponents contend.
"They've got to show their base that they're enforcing the immigration law even they say is flawed," said Laura Foote Reiff, a partner at Greenberg Traurig and counsel to the Essential Worker Immigration Coalition, a group of businesses and trade associations that lobbies for immigration reform.
DHS spokeswoman Veronica Nur Valdes said that the agency is just trying to do its job and help employers follow the law. "We have a responsibility to protect our nation and enforce our immigration laws. Since Congress didn't give us the tools we need, we're using the tools we have."
Since 1994, the Social Security Administration has sent "no-match" letters to most employers if the name and Social Security number on a worker's W-2 form do not agree with the agency's records. The letter asks the employer to correct the discrepancy within 60 days so Social Security can properly credit a worker's earnings. The letter explicitly states that the inquiry does not involve an employee's immigration status. There are no penalties if an employer does not respond.
Homeland Security wants to send employers its own letter giving them 90 days to correct the problem -- and outlining the steps they need to take -- or fire the worker. Businesses that show they took the appropriate action would be granted "safe harbor" from Immigration and Customs Enforcement using the no-match notification to prosecute them for illegal-hiring practices. Those that don't "place themselves at obvious risk and invite suspicion that they are knowingly employing workers who are here illegally," Homeland Security Secretary Michael Chertoff said in December.
Employers are subject to civil fines of as much as $16,000 per worker for knowingly employing illegal immigrants, and those who make a practice of it face criminal charges that carry a maximum prison term of five years.
Many illegal workers use fake Social Security numbers to get jobs, but opponents of DHS's plan point out that mismatches can occur for legitimate reasons, such as clerical errors, unreported name changes, and inaccurate employment records. Social Security's inspector general found that discrepancies in approximately 17.8 million (4 percent) of the 435 million records in the agency's database could result in mismatches, and that more than 70 percent of discrepancies -- 12.7 million people -- involve native-born U.S. citizens.
Even if the rule could accurately target illegal aliens, said Angela Kelley, director of the American Immigration Law Foundation's Immigration Policy Center, "we're kidding ourselves if we think these undocumented workers are going to quietly pack their bags and go home. What they're going to do is work in the [illegal] cash economy, go farther underground, or get another Social Security number, and the problem will only get worse."
AFL-CIO attorney Ana Avendano said that DHS's own estimates suggest that as many as 70,000 legal workers could lose their jobs because of the rule. "On balance, what does this letter accomplish?" Avendano asked. "By law, Social Security won't tell DHS who gets the letters, so [DHS] can't target employers who receive no-match letters."
Marielena Hincapie, director of programs for the National Immigration Law Center, predicted that "inaccuracies in the database will lead to discrimination primarily against people of color or people perceived to be immigrants," regardless of their immigration status. She said that the center has already received numerous reports of employers firing workers they suspect might be in the country illegally.
Rep. Lamar Smith, R-Texas, the House Judiciary Committee's ranking member, praised the rule as "an important step toward addressing illegal immigration by putting an end to the job magnet that encourages so many to come here illegally and stay. The sooner DHS can implement this rule, the sooner we can seriously begin to address the problems posed by the millions of illegal immigrants already in the country."
The department proposed the rule in June 2006, but it has been on hold since August 2007 because of a legal challenge by labor, business, and civil- and immigrant-rights groups.