The Department of Homeland Security’s New "No Match" Rule

As a result of the inability of Congress to enact workable immigration reform, the Bush Administration has announced plans to increase enforcement, placing employers in a difficult position. The Administration’s latest plan requires employers to resolve discrepancies between employee records and those of the Social Security Administration or the Department of Homeland Security. Once the employer has notice of a discrepancy in Social Security number or immigration status information from what is referred as a "no match" letter, the employer has 90 days to re-verify the information. If the employer is unable to correct the discrepancy within this time frame, the employer has the following two choices: (1) terminate the employment, or (2) continue the employment. If the employer chooses the first option and terminates the employment, he or she may be faced with lawsuits by employees. If the employer chooses the second option, he or she may be faced with severe civil and criminal sanctions from the Department of Homeland Security.

Employers often receive "no match" letters for several reasons, such as clerical errors or failure to register a change of name after marriage. Both employers and employees can face bureaucratic delays in attempting to document and correct records. With this new enforcement plan employers will be made to jump through hoops, and employees could face potential termination as a result of these delays. These enforcement measures could have serious consequences on industries such as agriculture, hospitality, and construction.

The construction and agriculture labor pool relies in significant part on undocumented or illegal immigrant labor. Nationwide, it is estimated that undocumented illegal workers number more than 12 million, with approximately 2.4 million of those workers employed in construction.

American society continues to be redefined by immigration, but the modern illegal immigrant community faces different challenges than previous immigrant populations.

After the terrorist attack of September 11, 2001, the U.S. government consolidated Immigration and Naturalization Services (now known as Citizenship and Immigration Services) with the Department of Homeland Security. As a result of the merger between these two agencies, there has been great emphasis on "tightening" America’s borders.

There is now a greater focus on regulating the entry and conduct of undocumented illegal immigrants through the primary investigative department, Immigration and Customs Enforcement (ICE). Despite the economic and social reliance on undocumented laborers, Congress continues to introduce bills geared toward immigration enforcement rather than reform, having serious consequences for the industries that employ these immigrants.

Employers of illegal immigrant laborers should closely monitor immigration reform and enforcement legislation as both could potentially pose severe punishments for such employers. The punishments may include prison sentences for employers who are repeat offenders, and/or fines of up to $10,000. Should such legislation take effect, it is likely that a national labor shortage may occur. The labor shortages in the affected industries would result in increased costs, strains and delays on local businesses as well as the community overall. Unfortunately, we may have to wait for at least the next two years for comprehensive immigration reform. As of now, with the enforcement-only approach immigrant employees and their employers are faced with a huge road block. Employees are unable to apply for legal status because no paths to legal status are available under the current system. Employers cannot find legal immigrant workers because no employment visas exist for such workers, and there seems to be an insufficient number of U.S. citizens willing to take these jobs.

Enforcement-only legislation is not the answer. Congress needs to resume negotiations of comprehensive reforms that will secure our nations future by creating clear paths to lawful residence, providing new worker programs, eliminating backlogs in family immigration, assuring due process and protection of civil liberties while safeguarding our national security interests.