A Rush To Expedite No-Match Rule

A push to expedite no-match rule
It could lead to firing of those with Social Security disparities

By Bob Egelko
The San Francisco Chronicle, December 4, 2008

The Bush administration is urging a federal judge in San Francisco to let it implement a crackdown on suspected illegal immigrants in the workplace before President Bush leaves office.

In papers filed this week in U.S. District Court, the Department of Homeland Security argued for an accelerated schedule that could allow a regulation known as the no-match rule to take effect by mid-January.

The rule, which the department first proposed in August 2007, would threaten businesses with prosecution unless they fired employees whose Social Security numbers differed from their listings in the Social Security database.

The rule has been held up by a lawsuit filed by the AFL-CIO, other unions and business groups led by the U.S. Chamber of Commerce. Administration lawyers said in their filing that most issues in the case have been resolved and that further delays are unwarranted.

At a hearing Friday, U.S. District Judge Charles Breyer will consider whether to expedite the case or follow a more conventional schedule, under which a ruling would not come until at least March.

President-elect Barack Obama, who takes office Jan. 20, has not taken a position on the no-match rule. But Ana Avendano, director of the AFL-CIO's immigrant worker program, said Wednesday she is hopeful his approach will differ from Bush's.

Obama has shown reluctance on at least one occasion to require the use of government databases to check workers' identities, Avendano said. While the Senate was debating an immigration bill that eventually died, she said, the Illinois Democrat proposed an amendment to limit compulsory use of E-Verify, an online program in which employers can check government records to see whether someone is legally authorized to work.

Lucas Guttentag of the American Civil Liberties Union, a lawyer in the case, said, 'It makes more sense to allow the incoming administration to decide how it wants to proceed and have adequate time to assess a regulation universally opposed by civil rights groups, labor groups and business groups.'

Homeland Security Secretary Michael Chertoff proposed the no-match rule to toughen a little-enforced provision of a 1986 immigration law barring businesses from knowingly employing undocumented immigrants.

Employers have been able to comply with the law by obtaining identification documents from new workers. Under the no-match rule, however, an employer notified by the government that a worker's Social Security number doesn't match federal records would have 90 days to resolve the discrepancy.

After that, an employer who failed to fire the worker would be subject to civil fines and criminal prosecution.

Opponents say the government often makes clerical errors in recording Social Security numbers and that discrepancies can arise when workers change names after marriage or divorce. They say the new rule would lead to the firings of hundreds of thousands of legal workers.

In an October 2007 ruling that blocked enforcement of the regulation, Breyer said wholesale firings were possible and that Homeland Security had failed to explain its reversal of a decade-old policy of not prosecuting employers.

Chertoff responded by proposing a virtually identical rule in March with a new explanation. No-match isn't really a policy change, the department said, because the government has always told employers they should investigate the reasons for Social Security discrepancies.

The proposed rule would also clear up employers' confusion about their legal obligations, Homeland Security said.