9/4/07 6:30 AM

Judge Blocks Immigration Enforcement Rules

By Bill Leonard

A federal judge in San Francisco issued a temporary restraining order on Aug. 31, 2007, blocking the Department of Homeland Security (DHS) from enforcing a new set of immigration enforcement rules. Attorneys with the American Civil Liberties Union (ACLU) had sought the restraining order on behalf of the AFL-CIO, the National Immigration Law Center and several other labor and immigration rights organizations.

The restraining order prohibits the DHS from enforcing the regulations until Oct. 1, when another federal judge will consider whether to grant a permanent injunction. The DHS regulations would require employers to follow a new set of procedures when receiving “no-match” letters from the Social Security Administration (SSA); they had been set to go into effect on Sept. 14.

According to the regulations, employers would violate federal immigration laws if they fail to take corrective steps within 90 days of receiving any “no-match” letters. The corrective steps include checking employment records for clerical errors and confirming that the company records match government data.

DHS officials have stated that employers will reduce their liability by making “good faith” efforts to solve the problems.

In the complaint, the ACLU stated that the DHS and SSA had overstepped their authority by attempting to use wage and tax information to enforce immigration law. U.S. District Judge Maxine Chesney agreed and stated that there were serious questions whether the new regulations were authorized by law. The judge said that the federal government would suffer little inconvenience if enforcement of the rules were delayed.

Chesney said that her decision to issue the restraining order didn’t mean she thinks the rule change is illegal, but she added that it was important for the federal agencies to present evidence clearly showing a connection between a no-match letter and “a reasonable inference that the person is here illegally.”

The ACLU and labor groups chose to file the suit in Northern California, because the courts there have tended to rule in favor of supporting worker and immigrant rights, sources say.

The lawsuit asked the court to prohibit the SSA from placing this year’s first round of “no-match” letters in the mail on Sept. 4.

On Aug. 10, DHS Secretary Michael Chertoff announced his department’s latest initiative to enforce federal immigration laws. The no-match rules are a key component of the enforcement effort. The final regulations appeared in the Federal Register on Aug. 15 and were set to take effect 30 days after publication.

‘Outrageous’ Implementation Period

While some employer groups praised the new rules by saying the changes provided needed guidelines on what employers should do after receiving no-match letters, other groups criticized the quick implementation period. Officials with the U.S. Chamber of Commerce called the 30-day period “outrageous” and claimed that the short turnaround time would mean most employers could not comply with the regulations.

A coalition of business associations, including the chamber and the American Hotel & Lodging Association, sent a letter to DHS requesting that it delay the effective date of the rules. However, officials with Immigration and Customs Enforcement (ICE) appear to have rejected that notion, saying that the rules went through the proper notification and review period under federal guidelines.

Pat Reilly, a spokesperson for the ICE, told reporters that employers were notified about the rule revision in the summer of 2006 and that the changes are simply a clarification of existing law.

“The only thing employers are losing under the new rules is the right to say, ‘I didn't know,’ ” Reilly said.

The ACLU lawsuit, however, takes the complaint about the rules revision a step further, claiming that the DHS and SSA have overstepped their authority in issuing the regulations. The suit claims that the DHS and the SSA cannot use wage and tax data to enforce immigration law.

“The new rule turns the law on its head by using the notoriously incomplete and inaccurate Social Security databases to decide who is authorized to work. This will wreak havoc with workers and businesses and will cause massive discrimination against anyone who looks or sounds foreign,” said Lucas Guttentag, director of the ACLU Immigrants Rights Project. “The DHS is trying to hijack the Social Security system for improper immigration enforcement.”

The ACLU complaint alleges that the new rules will have an adverse impact on immigrant workers who are authorized to work in the United States. Members of the HR Initiative for a Legal Workforce have stated that the rules could increase discrimination claims as more workers lose their jobs and as employers become more cautious about hiring immigrants.

The HR Initiative, which includes the Society for Human Resource Management (SHRM), has urged the Department of Justice to propose new rules that would protect employers from discrimination charges if employees are discharged in compliance with the DHS no-match rule.

“We believe the new rules provide the guidelines that employers need when they receive no-match letters,” said Michael Aitken, director of governmental affairs for SHRM. “But some questions do remain about how these rules will be enforced. The bottom line, as we see it, is that we need an electronic employment verification system that works.”

Aitken said the ACLU lawsuit wasn’t a surprise and that the groups supporting the lawsuit are an interesting mix of organized labor and business groups. Still, the labor groups took the chance to say that the new no-match rules were an effort to limit the rights of workers in the United States.

“This rule is a new tool to repress workers’ rights in the name of phony immigration enforcement,” said John Sweeney, president of the AFL-CIO, in a written statement. “Employers have used SSA no-match letters to fire workers when workers try to organize, when they report a wage claim or workplace hazard, or when they get injured. The new rule gives employers a stronger pretext for engaging in such unlawful conduct.”

Bill Leonard is senior writer for HR News.

Related Articles:

Employer Groups Ponder Effect of Immigration Crackdown, HR News Aug. 16, 2007

DHS Finalizes New Rule on No-Match Letters, HR News, Aug. 13, 2007

Once Again, Immigration Reform Stalls in Senate, HR News, June 28, 2007

Immigration Reform Bid Stalls in the Senate, HR News, June 8, 2007

Meisinger: Reform Employee Verification System, HR News, June 8, 2007

New HR Coalition Seeks Reliable Employment Verification System, SHRM Online Global HR Focus Area, March 2007

Administration Officials Say Immigration Reform Has To Consider Business Needs, SHRM Online Global HR Focus Area, March 2007

U.S. Visa Process Is Long, Complicated for Employers Seeking Foreign Hires, SHRM Online Global HR Focus Area, February 2007

For the latest HR-related business and government news, go daily to www.shrm.org/hrnews.