I was just emailed, asking for my opinion on the new regulation from Homeland Security that is aimed at employers who receive “no match” letters from the Social Security Administration (SSA). On August 10, Homeland Security Secretary Michael Chertoff told reporters that SSA will soon send letters to employers informing them that a name and social security number does not match SSA records.

This move is clearly a punishment by the Bush administration for the failed attempts by Congress to pass a comprehensive “immigration reform” legislation. Under a new rule, employers are automatically deputized as de facto immigration enforcement officers. The policy could drastically lead to an increase in indiscriminate firings by employers if they are unable to resolve the discrepancies. Upon receiving the letter, the new regulation would give employers 90 days to clear up the matter and prove the worker’s name and number match. If the employee is unable to do so, the employer must fire the employee or be deemed to have knowledge that the employee is undocumented and face criminal liability.

The new rule goes into effect in September, however, US District Judge Maxine M. Chesney granted a temporary restraining order sought by the AFL-CIO and affiliated unions to stop the Social Security Administration from mailing 140,000 “no match” letters to employers advising them that some of their employees did not match government records. The AFL-CIO lawsuit, filed this week, claims that new Department of Homeland Security rules threaten to violate workers’ rights and unfairly burden employers. Chesney said the court needs “breathing room” before making any ruling on the legality of the new regulations.

Uncle Chertoff’s New Immigration Officers
Despite the growing globalization of the US economy, employers are now facing more immigration-related obstacles than ever before. It is bad enough employers were already shying away from hiring foreign labor, now they are forced to make a difficult decision involving a person’s livelihood in response to the “no match” letter. If the Court rules in favor of Homeland Security, the impact of the new regulation will be catastrophic. It is estimated that as many as eight or nine million people will lose their jobs at the end of this year.

On its face, the new regulation might seem to have merit because from the outside, the new regulation would punish businesses who knowingly hire undocumented immigrants. However, looking closely, one can see how the proposed regulation is marred with legal newspeak, such as “constructive knowledge,” “safe-harbor,” and “totality of relevant circumstances.” The law broadens the focus of “constructive knowledge” to close off any loophole an employer may use in order to say that they did not know an employee was unauthorized. According to the new regulation, if an “employer fails to take reasonable steps after receiving [a no-match letter], … the employer may be found to have had constructive knowledge” that the employee was undocumented. In other words, an employer who receives a no-match letter and decides not to do anything, DHS might deem them guilty.

Doublespeak is the art of saying one thing and conveying one meaning, it’s language that hides, evades or misleads.. It derives from the words “Newspeak” and “doublethink” used in George Orwell’s classic Nineteen Eighty-Four. By corrupting the language, the people who wield power are able to fool the others about their activities and evade responsibility and accountability. In the carefully worded regulation, DHS requires that employers take “reasonable” steps to address the discrepancies -

(1) an employee’s request for the employer’s sponsorship of the employee for a labor certification or visa petition; (2) receipt of a no-match letter from the Social Security Administration (”SSA”); and (3) receipt of a notice from DHS (usually after an I-9 audit) that the employee’s employment authorization documents presented in connection with completion of the I-9 form do not match DHS records.

By following these steps, DHS promises that it “will” protect them against a “constructive knowledge” charge. The regulation further states that “[t]here may be other procedures a particular employer could follow,” however, an “employer that follow[s] a procedure other than the ’safe-harbor’ procedure described in the regulation would face the risk that DHS may not agree.”

Unfortunately, Homeland Security’ game is a two-edged sword of doublespeak and fear. Although DHS does not have the authority to require employers to comply with these steps, DHS cleverly worded the rule to provide an evidentiary safe harbor and presented it as a benefit to employers who choose to take the action steps. DHS has decided to use a scare tactic by making businesses believe if they do not respond to no-match letters they could be targeted by the Department of Homeland Security. And, it undoubtedly would do just that. By using terms such as “may” and “could,” it is inevitable that many businesses receiving the letters will be unfamiliar with their purpose and unsure how to respond. Even worse, DHS’ goal is to create a perception that the affected workers are undocumented immigrants who have used false SSNs to obtain employment and retaining these workers might place them in violation of federal immigration laws. In other words, these letters are meant to create a heighten level panic and uncertainty, which could result in the removal of perhaps tens of thousands Latino workers (native and foreign born) from their jobs.

Screwing the Little Guy
The policy will force employers to keep their employees off the books. It is not a secret, that some employers will find other ways to avoid loss of profits and productivity. In the end, this practice is harmful to state and federal government coffers and will create unfair competition to employers who want to do the “right” thing. Certain employers will see a clear and immediate economic advantage to taking their employees off the books.

Small, law-abiding entrepreneurs without political clout must bear increased costs, putting them at a competitive disadvantage and distorting the free mark. Law-abiding businesses must also compete against large companies that will continue and the resources to search for alternative employment where no-questions are asked, such as hiring subcontractors (usually small businesses) to enjoy the cost-savings of hiring undocumented workers.

While undocumented immigrants are popularly perceived as unskilled workers who are easily replaceable, the economic reality for many employers is that cannot easily replace these workers without disrupting operations, especially farmers who are most likely to be affect during the hiring crunch. According to the American Farm Bureau Federation, farmers fear they may have to fire employees, crippling their operations and making it impossible to harvest crops, which could spell financial ruin. The same goes for the meatpacking and food processing industry. Hotels and restaurants would turn away customers.

When the Social Security Administration began its employer “no-match letter” program, it was meant to help properly allocate the billions of dollars of contributions collected from workers with incorrectly filed Social Security numbers. Under this program, when SSA detects a mismatched name and SSN on a filed wage report, a letter is mailed to notify the employer of the problem. However, after 9/11, the no-match letters have erroneously come to be seen as a tool of immigration enforcement.

In a study conducted by the University of Illinois at Chicago’s Center for Urban Economic Development (CUED) in 2003 regarding the SSA’s no-match letter program, CUED found that more than half their employers fired workers listed on the letters because the employers mistakenly believed they were undocumented immigrants. Many employers acted without giving workers time to defend themselves and resolve errors, despite explicit warnings from the SSA not to fire employees based solely on the letters. The study also found that unscrupulous employers used the no-match letters to take advantage of their workers’ vulnerable position, undermining their rights and reducing their compensation.

Before 9/11, SSA had roughly sent out about 40,000 letters annually to employers. Since then, that number jumped to 110,000 letters, with 1 in 60 employers receiving no-match letters. In 2002, the SSA sent a letter to every employer who had at least one employee whose information did not match the SSA’s records. This change in practice resulted in the SSA issuing roughly 900,000 letters, the equivalent of 1 in 8 employers receiving these letters. As a result, employers have fired thousands of workers identified in no-match letters, assuming that they are undocumented immigrants. Moreover, many workers identified in the letters also quit their jobs out of concern that immigration authorities may raid their workplace.

Homeland Security’s new regulation revives characteristics of past systems of peonage in that it takes away workers’ rights to make a living and allows employers to wield government power against workers. Once the new regulation goes into effect, it will gives employers law enforcement power to check immigration status without any accountability. When undocumented workers demand better treatment, employers can threaten an ICE work-site raid and the workers’ deportation. It will employers to use the no-match letters to push wages below fair market levels and use state power to stop workers from protesting inhumane labor conditions.

There is even a possibility that DHS has set its sights on businesses that have yet responded to previously sent no-match letters and use it as evidence that the company was not complying with immigration law. Racial profiling blinds law enforcement to real criminal threats and creates a hole in the national security net. The new rule is not only harmful to the labor market, but it will also weaken the rule of law, which is essential to the protection of human rights. The overly braod and heavy-handed approach in using the “no-match letters” as a tool of immigration enforcement is also reflected in other US laws, executive orders, policies and tactics that have led to the erosion of our civil liberties and essential human needs.

Eight million employees will be affected, which will have a long lasting damage to this country. The immense amount of human suffering in this country, once these letters go out will be insurmountable. Thousands of families will suddenly have no means to buy food, pay rent, clothe their children or send their children to school. Communities already stretched to provide services to currently unemployed workers will not have the means to meet this additional need, because undocumented immigrants are ineligible for welfare, food stamps, unemployment insurance, and almost all other public benefits.

Penalizing immigrant workers and their employers will not address or fix our nation’s flawed immigration policy. Using the no-match letters as an instrument of immigration enforcement does nothing but create a breeding ground of hate and rationalize the discrimination against authorized workers who come from the same countries and speak with the same accents as undocumented workers. We are reaching a point where our humanity has become cruel. We must seek to put the values of life, peace and justice above our desire to destroy. A society cannot exist when the cultures within that society cannot live in harmony with one another.

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Tags: AFL-CIO, Homeland Security, ICE, Immigration, Michael Chertoff, no-match letters, undocumented immigrants |  Print This Post |
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