No-Match Rule is No Longer

Wednesday, 07 October 2009 12:45

Immigration

On October 7, 2009, the Department of Homeland Security (DHS)’s final rule to rescind the No-Match regulation was published in the Federal Register. The No-Match rule was created to establish “safe harbor” procedures for employers receiving No-Match letters from the Social Security Administration (SSA) or notice of suspect document letters from the U.S. Immigration and Customs Enforcement (ICE) regarding authorization to work in this country. The rule, however, was never implemented because it was blocked through an injunction issued by a California District Court in the case AFL-CIO v. Chertoff.

When Secretary of Homeland Security Janet Napolitano, known for her staunch support of the E-Verify system, was sworn into office on January 1, 2009, she quickly ordered reviews of all existing programs and regulations. DHS subsequently reviewed the rule and, shortly thereafter, announced its intent to focus immigration enforcement efforts on increased compliance through programs such as the E-Verify and ICE Mutual Agreement between Government and Employers (IMAGE), which it deemed to be better ways of reducing illegal employment.

E-Verify is an Internet-based system operated by the DHS and the SSA that allows employers to “verify” the employment eligibility of newly hired employees. While it is trumped up as a great program, it is filled with inherent flaws. The IMAGE program attempts to “assist” employers through education and training on enhanced techniques, such as enrollment in the E-Verify system so that they can identify fraudulent immigration documentation, and proper hiring procedures.

COUNSEL TO MANAGEMENT:

It is no surprise that the No-Match Rule has been rescinded. DHS originally announced its intention to do so on July 8, 2009. However, even though the No-Match rule is officially repealed, a National version of E-Verify may be on its way. As mentioned above and in some of our previous articles, E-Verify has some very significant problems. The following issues, in addition to others, are associated with the E-Verify system:

1. SSA estimates that 17.8 million (4.1%) of its records contains discrepancies related to name, date of birth, or citizenship status, with 12.7 million of those records pertaining to U.S. citizens;
2. Were E-Verify to become mandatory and the databases were not improved, SSA database errors alone could result in 2.5 million people a year being misidentified as not authorized for work (this does not even include DHS errors);
3. Due to database errors foreign-born lawful workers (including those who have become U.S. citizens) are 30 times more likely than native-born U.S. citizens to be incorrectly identified as not authorized for employment;
4. Foreign-born U.S. citizens feel the greatest impact, with almost 10 percent initially being told that they are not authorized to work (versus 0.1% for native-born U.S. citizens); and
5. U.S. Citizenship and Immigration Services (USCIS) has a consistent history of mishandling the huge volume of data for which it is responsible. Problems have included inaccurate databases, privacy and security lapses, and difficulty in fielding and developing information systems. Additionally, the Government Accountability Office found in a review of 14 USCIS district offices in 2006 that over 110,000 immigrant records were lost.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with The Saqui Law Group at (831) 443-7100 in Salinas.