The Department of Homeland Security has reissued a rule defining the way employers should respond to employees whose Social Security numbers don’t match what the government thinks they should be.
The rule is less likely to affect workers or employers participating in the heavily administered H-1B visa program than it is other visa programs, or even native-born citizens, experts said. But the threat that a worker must be fired for what might be a federal clerical error has civil rights groups up in arms.
The so-called “No-Match” rule defines a set of procedures employers should follow if they receive letters from the Social Security Administration saying the Social Security number on an employee’s W-2 form doesn’t match SSA records.
Such “safe harbor” procedures guarantee that the U.S. Immigration and Customs Enforcement department won’t prosecute the company for “knowingly” violating immigration rules.
The rule requires the worker to contact the SSA to fix the error; if it hasn’t been resolved within three months, the employee could be fired.
Among the concerns cited by U.S. District Judge Charles R. Breyer is the possibility that innocent workers would lose their jobs if discrepancies were not corrected within the span of time required by the DHS.
Firing workers based on errors in or discrepancies from the SSA’s “notoriously flawed” database would put not only legal immigrant workers’ jobs at risk, but those of U.S. citizens as well, especially those whose records might include a name change, use of multiple surnames or clerical errors, according to a statement from the National Immigration Law Center, one of several civil rights groups that were party to the suit.
“The DHS rule has caused lots of confusion and panic among workers and employers alike,” NILC’s analysis said. “It is likely that publication of the final rule may prompt many employers to implement it even through no No-Match letters were sent out in 2008.”
New Rule, Same as the Old Rule
The DHS proposed the rule in June of 2006, published a final version of it in August 2007, and was sued by the AFL-CIO, American Civil Liberties Union and others in Federal District Court in San Francisco. The court issued a temporary restraining order forbidding the DHS to enforce the rule, and followed up in October of last year with a preliminary injunction against enforcement, which still stands.
The DHS didn’t give up, however, publishing a proposed revision in March of this year, followed by a “revised supplemental final rule” Oct. 23. Despite the title, the new rule is substantially the same as the old one, according to American Immigration, an immigration-law information and legal referral service that is involved in the suit.
The DHS has announced it will go to court Nov. 21 to ask that the injunction be removed so the No-Match rule can be enforced as written.
The rule affects all companies that employ non-residents whose status may be open to question, but shouldn’t have much impact on companies employing H-1B workers, according to Paul Colman, director of marketing for VisaNow, which provides legal and process-management services to companies hiring workers using H-1B and other visas.
“A Social Security number might not match because of inaccurate records, a name change, a difficult spelling or whatever,” Colman said. “If I hire an applicant on an H-1B and a typographical error comes up, that would generate a No-Match letter. But H-1B visas are very competitive and time consuming, so the employers usually have all their ducks in a row by the time they’ve gone through the immigration process.”
“The No-Match program itself is targeted more at employers who are illegally employing immigrant labor,” Colman said.
The No-Match rule also doesn’t address most of the issues found in a recent DHS report estimating that as many as 20 percent of H-1B visa applications were tainted by fraud or technical violations, according to Ron Hira, assistant professor of public policy at Rochester Institute of Technology and co-author of “Outsourcing America.”
“Most of those had to do with getting the employee to pay fees the employers were supposed to pay, paying below market wages, benching and things like that,” Hira said. “So it really doesn’t address H-1B reform.”