New York City Mayor Michael Bloomberg wrote a detailed memorandum to the next President in the latest Newsweek Magazine. The mayor succinctly lays out the case for immigration reform being included in the First 100 Days agenda:
Pioneering green energy—and countless other new technologies—requires the best and brightest minds. Unfortunately, our broken immigration system has been shutting too many of them out. In many cases, brilliant young students come to America to receive an education, but after they receive their degrees, the federal government boots them out—and so they take everything they have learned and go put it to work for another country. That's insanity! And it is badly damaging our capacity for innovation.
Traditionally, economic downturns have heightened xenophobia and resulted in tighter immigration restrictions—making a bad economic situation worse. We cannot allow that to happen again. Too many companies are already setting up shop elsewhere because of the difficulty they have getting visas for their foreign workers. That means fewer jobs for middle-class Americans, and less tax revenue to pay for education, health care and other essential services.
Immigration reform is central to getting our economy back on track. The elements of the most practical and effective plan combine ideas from both the left and the right: imposing tighter border security; creating a 21st-century worker identification card that will allow employers to verify the legality of a job applicant and allow the federal government to enforce the law; increasing lawful opportunity for those seeking the American Dream; and—following in the footsteps of President Reagan—allowing those who are here illegally the chance to earn the right to stay.
You will never convince the demagogues, but most members of Congress will be willing to support this kind of common-sense approach if they believe it will not threaten their re-election campaigns. Tell them—including members of the opposite party—that they will have your support in their re-election campaigns. That simple act may do more to shake up the Washington establishment than anything that has occurred there in decades.
The media may be focusing on the turnout of African-Americans and young voters, but another group will also be critical, according to the Chuck Todd, NBC News' political head honcho. Todd sees Hispanics as the key to winning critical western states like Colorado, Nevada and New Mexico. And Hispanics will also prove important in North Carolina, VIrginia and Florida.
As for McCain, despite his best efforts (as well as that of President Bush and Karl Rove), the Republican brand has been tainted, potential for the long-term, due to the negative tone of the immigration debate that took place on conservative talk radio and in the presidential primaries.
In fact, McCain's immigration stance was so damaging that it is what nearly derailed his candidacy in mid-2007, not Iraq as the campaign sometimes likes to claim.
McCain ended up backing off a bit on his immigration stance. And to many Hispanics, it may have looked like McCain chose his party over his convictions on the issue.
As for Hispanics' willingness to vote for African-Americans, this was about as tested of a premise as the so-called "Bradley effect." Too many analysts went with their gut or with one example in one big city, rather than truly examining whether there was prejudice between Hispanics and blacks.
Todd gives an actual target number for Obama supporters to watch. Any Hispanic voting percentage over 65% virtually assures Obama of a win in the western states trifecta of Nevada, New Mexico and Colorado. He's been hitting better than that target in national polls so the Democrats are presumably pleased.
But Hispanic voters need to go one step further than votng. They need to press the Obama campaign to commit to making immigraton reform a priority for the First 100 days agenda of an Obama White House. And they need to get this commitment BEFORE the election.
To say that the DHS has been confusing the public with the announcement of its final no-match rule is an understatement. Now after saying that the rule might not be published for a few weeks (presumably to ge the judge's sign off first), now we're learning that the rule will be published tomorrow (hat tip to Dan Kowalski for letting us know). I presume that as long as the no-match letters are not released until the judge gives his consent, it doesn't really matter except to the extent employers are confused.
In the mean time, the US Chamber of Commerce and LULAC have released the following press release:
LULAC-USChamber - Free Legal Forms
Lest you think that the World Series is not really a "world"championship, look no further than the rosters of the teams. Just like the Philadelphia Phillies who I wrote about the other day, their World Series opponent, the Tampa Bay Rays, also have a number of immgrant players. They include
Secretary Chertoff has indicated that the agency will NOT implement the no-match rule until a judge that enjoined the 2007 rule signs off. This appears to contradict the language in the preamble in the proposed rule which indicated DHS did not need the judge's approval. In my post yesterday, I express curiosity how DHS planned on ignoring the judge and now my question is answered. One of the attorneys in the case contacted me last night and mentioned that the judge will be meeting with the parties in the next few days. Presumably, the litigants will fight to maintain the injunction.
Also, the rule is not going to be published, according to Chertoff, for a few weeks. That now makes sense since if the judge signs off, the rule can take immediate effect upon publication as called fo under the rule.
From Chertoff's official statement:
As a consequence, in March of this year, we proposed a supplemental rule to address those concerns and we also provided a more detailed analysis of how we developed the No-Match Rule and what the consequences would be. Not surprisingly, we got a lot of comments with regards to the supplemental rule. I am pleased to say we have carefully considered the comments and that this week I signed the final rule that revises the original rule, addresses the issues that the court raised, and that will be published in the Federal Register in the coming weeks.
We will be notifying the judge that we have taken action to address the courts' concerns on the original rule, and we will ask the court to lift the injunction, and let us proceed with implementation of the rule immediately.
From an interview in today's Los Angeles Times:
The estimated 12 million immigrants in the U.S. illegally "are part of the U.S. economy. We cannot send them all home, and we cannot send them all to jail, so we have to address it," Pelosi said.
Any solution would have to be bipartisan, she said, so it may require sacrificing some of Democrats' past priorities, such as giving illegal immigrants a path to citizenship.
"Maybe there never is a path to citizenship if you came here illegally," Pelosi said. "I would hope that there could be, but maybe there isn't."
This is certainly an indication that if President McCain or Obama decide to push immigration reform in their 100 day agenda, they'll find a willing Congress. While some in the hard core pro-immigrant community will no doubt push to kill any bill that does not include a path to citizenship, hopefully they will realize after two prior failures that the only way we will improve the immigration system is to accept compromise. The perfect is the enemy of the good, folks.
The rule was challenged in court prior to it taking effect in September 2007 and a judge issued a preliminary injunction on three grounds:
- DHS failed to supply a reasoned analysis justifying what the court thought was a change in DHS’ position - that a no-match letter may be sufficient, by itself, to put an employer on notice that its employees may not be work authorized;
- DHS exceeded its authority (and encroached on the authority of the Department of Justice) by interpreting anti-discrimination provisions in the Immigration Reform and Control Act (IRCA); and
- DHS violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis.
The agency did not account for costs associated with losing employees unable to resolve problems within 90 days, something that critics fear will become common as hundreds of thousands of people attempt to resolve problems at the same time under the new rule. DHS did cite the following costs: labor cost for human resource personnel, certain training costs, legal services and lost productivity. Did DHS mention any changes to the August 2007 rule in the new October 2008 rule?
DHS only made two relatively minor changes. First, DHS changed the rule requiring that employers “promptly” notify affected employees after they are unable to resolve a mismatch through internal checks. Employers will now be given five business days to notify employees. Second, DHS made clear that employees hired before November 1, 1986 are not covered by the no-match rule since these workers are not subject to IRCA. The following is a summary of the October 2008 final rule: Why did ICE issue this rule? All employers in the US are required to report social security earnings for their workers. Those W-2 form reports listing an employee’s name, social security number and the worker’s earnings are sent to the Social Security Administration. In some cases, the social security number and the name of the employee do not match. In some of these cases, the SSA sends an employer a letter informing the employer of the no-match. In some cases, the no-match is the result of a clerical error or a name change. In other cases, it may indicate that an employee is not authorized to work.
ICE issues similar letters to employers after they conduct audits of an employer’s Employment Eligibility Verification forms (the I-9s) and find evidence that an immigration status document or employment authorization document does not match the name of the person on the I-9 document. To date, there has been considerable confusion and debate over an employer’s obligations after receiving a letter like this as well as whether an employer would be considered to be on notice that an employee is not unauthorized to work. This rule clarifies both issues albeit in a way that will be very unfriendly to employers and workers. DHS cites the Mester Manufacturing case from the 9th Circuit Court of Appeals to remind employers that if they will have "constructive" knowledge that an employee is out of status, they are in violation of IRCA, the statute that punishes employers for knowingly hiring unlawfully present workers or violating paperwork rules associated with the I-9 employment verification form. When is this rule effective? It became effective publication in the Federal Register (expected to take place within a few work days of the announcement of the rule on October 23, 2008). How has the definition of "knowing" changed in the rule? Two additional examples of "constructive knowledge" are added to the list of examples of information available to employers indicating an employee is not authorized to work in the US. First, if an employer gets a written notice from the SSA that the name and SSN do not match SSA records. And second, written notice is received from DHS that the immigration document presented in completing the I-9 was assigned to another person or there is no agency record that the document was assigned to anyone. However, the question of whether an employer has "constructive knowledge" will "depend on the totality of relevant circumstances." So this rule is just a safe harbor regulation telling how an employer can avoid a constructive knowledge finding, but not guaranteeing that an employer will be deemed to have constructive knowledge if the safe harbor procedure is not followed. What steps must an employer take if it gets a no-match letter? First, an employer must check its records to determine if the error was a result of a typographical, transcription or similar clerical error. If there is an error, the employer should correct the error and inform the appropriate agency – DHS or SSA depending on which agency sent the no-match letter. The employer should then verify with that agency that the new number is correct and internally document the manner, date and time of the verification. ICE is indicating in the preamble to the regulation that 30 days is an appropriate amount of time for an employer to take these steps. If these actions do not resolve the discrepancy, the employer should request an employee confirm the employer’s records are correct. If they are not correct, the employer needs to take corrective actions. That would include informing the relevant agency and verifying the corrected records with the agency. If the records are correct according to the employee, the reasonable employer should ask the employee to follow up with the relevant agency (such as by visiting an SSA office and bringing original or certified copies of required identity documents). Just as noted above, thirty days is a reasonable period of time for an employer to take this step. The rules provide that a discrepancy is only resolved when the employer has received verification from SSA or DHS that the employee’s name matches the record. When 90 days have passed without a resolution of the discrepancy, an employer must undertake a procedure to verify or fail to verify the employee’s identity and work authorization. If the process is completed, an employer will NOT have constructive knowledge that an employee is not work authorized if the system verifies the employee (even if the employee turns out not to be employment authorized). This assumes that an employer does not otherwise have actual or constructive knowledge that an employee is not work authorized. If the discrepancy is not resolved and the employee’s identity and work authorization are not verified, the employer must either terminate the employee or face the risk that DHS will find constructive knowledge of lack of employment authorization. What is the procedure to re-verify identity and employment authorization when an employee has not resolved the discrepancy as described above? Sections 1 and 2 of the I-9 would need to be completed within 93 days of receiving the no-match letter. So if an employer took the full 90 days to try and resolve the problem, they then have three more days to complete the new I-9. And an employee may not use a document containing the disputed SSN or alien number or a receipt for a replacement of such a document. Only documents with a photograph may be used to establish identity. Does an employer need to use the same procedure to verify employment authorization for each employee that is the subject of a no-match letter? Yes, the anti-discrimination rules require employer to apply these procedures uniformly. DHS is also reminding employers about the document abuse provisions which bar employers from failing to honor documents that on their face appear reasonable. But employers now have the safe harbor of a new regulation stating that this provision does not apply to documents that are the subject of a no-match letter. DHS notes that if employers require employees to complete a new I-9 form, the employer must not apply this on a discriminatory basis and should require an I-9 verification for ALL employees who fail to resolve SSA discrepancies and apply a uniform policy to all employees who refuse to participate in resolving discrepancies and completing new I-9s. Note that employees hired before November 6, 1986 are not subject to this rule. This reflects a change in the October 2008 rule from the 2007 rule. What if the employer has heard that an employee is unlawfully present aside from hearing from SSA or DHS in a no-match letter? Employers who have ACTUAL knowledge that an alien is unauthorized to work are liable under the INA even if they have complied with the I-9 and no-match rules. But the government has the burden of proving actual knowledge. DHS also notes that constructive knowledge may still be shown by reference to other evidence. Does DHS have the authority to regulate the treatment of notices received by the SSA? A number of comments on the rule questioned this issue, but they were dismissed by DHS. Presumably, the issue could be the source of litigation. Why is DHS issuing this rule when the White House supports comprehensive immigration reform that would give employers legal options for hiring these workers? DHS indicated in the preamble to the rule that while it wants to work with Congress on such legislation, there is no way to predict when it will pass and interior enforcement needs to be conducted. Others are arguing that the White House is interested in demonstrating to Congress that it is "getting tough" on illegal immigration in order to increase the likelihood that members of Congress would support CIR. Will following the procedures in this rule protect an employer from all claims of constructive knowledge, or just claims of constructive knowledge base on the letters for which the employers followed the safe-harbor procedure? An employer who follows the safe harbor procedure will be considered to have taken all reasonable steps in response to the notice and the employer’s receipt of the written notice will there not be used as evidence of constructive knowledge. But if other independent exists that an employer had constructive knowledge, the employer is not protected. Are there any special rules for circumstances such as seasonal workers, teachers on sabbatical and employees out of the office for an extended period due to excused absence or disability? No, but DHS has noted that the rule provides a safe harbor to prove an employer does NOT have constructive knowledge and that if an employer makes a good faith effort to resolve a situation as rapidly as practicable and documents such efforts, that would be considered in evaluating the question of constructive knowledge. What are the time frames required under the rule to take each necessary action after receiving the no-match letter?
- Employer checks own records, makes any necessary corrections of errors, and verifies corrections with SSA or DHS (0 – 30 days)
- If necessary, employer notifies employee and asks employee to assist in correction (0 - 90 days) [Note: Under the October 2008 rule, employers have five days to notify employees of the no-match if the employer conducts its internal review, something that differs from the August 2007 rule]
- If necessary, employer corrects own records and verifies correction with SSA or DHS (0 - 90 days)
- If necessary, employer performs special I-9 procedure (90 - 93 days)
Yes. The only reason an employer would have to terminate prior to 93 days if the employer gains actual knowledge of unauthorized employment. DHS notes that it is not requiring termination by virtue of this rule; rather, they are just providing a safe harbor to avoid a finding of constructive knowledge.
Employers may be permitted to terminate based on its own personnel files including failing to show up for work or an employee’s false statement to the employer. [Note: It is always prudent to consult labor counsel before terminating employees for such reasons during the no-match process].
Employers may terminate as well if they notify an employee of the no-match letter and the employee admits that he or she is unauthorized to work. What if the no-match letter is sent to the employee, not the employer? The new rule only applies in cases where the written notice is to the employer. Does it matter which person at the employer receives the letter? No and DHS will not allow a designated person to receive these letters despite concerns raised about a no-match letter not making it to the appropriate party for too long. DHS has noted that an employer can determine an office within a company that becomes the recipient of all mail from DHS and SSA. Does verification through systems other than that described in this rule provide a safe harbor? No, and this includes instances where SSA provides options SSN verification as well as the USCIS electronic employment verification system. But DHS does note that DHS may choose to use prosecutorial discretion when employers take such steps. Does an employer filing for a labor certification or employment-based green card application have constructive knowledge constitute "constructive knowledge" that a worker is unauthorized? The new rule includes language stating "an employee’s request that the employer file a labor certification or employment-based visa petition on behalf of the employee" may be an example of a situation that may, depending on the totality of relevant circumstances, require an employer to take reasonable steps in order to avoid a finding of constructive knowledge. But DHS notes that some employees are work-authorized and are not necessarily unauthorized to work just because they request such sponsorship from an employer. Does an employer have to help an employee resolve the discrepancy with SSA or DHS? No. An employer merely needs to advise the employee of the time frame to resolve. They are not obligated to help resolve the question or share any guidance provided by SSA. In what manner must employers retain records required under the new rule? The rule is flexible in this regard and employers may use any manner it chooses. The rule permits employers to keep records alongside the I-9 form. Employers are encouraged to document telephone conversations as well as all written correspondence. If a new I-9 is prepared based on this rule, does that affect the amount of time the I-9 must be retained? No. The original hire date remains the same even though the safe harbor procedure is used. So if an employer was hired several years ago, for example, has the I-9 form prepared again and then moves on to a new employer, the original date of hire applies for purposes of determining whether the one year retention requirement still applies. Doesn’t requiring an employee to fill out a new I-9 form per this rule constitute document abuse? DHS does not believe this is the case because any document presented that contained a suspect SSN or alien number would not be facially valid and that it is proper for employers to require new documentation. Won’t this rule lead to massive firings across the country? Many people are certainly worried that employers won’t bother to go through the safe harbor procedures and will just panic and fire all workers that are the subject of these notices or will simply decide not to spend the effort complying. DHS denies that this is likely to be the case and has said the rule is in response to confusion under the current process. Will an employer be liable for terminating an employee who turns out to be work authorized if they get a no-match letter? If the employee IS authorized to work and an employer does not go through the various safe harbor steps in the rule, then the employer might be liable in an unlawful termination suit. Won’t this rule result in a major negative economic impact on the country? That is an argument being advanced by many opponents of the rule. DHS only responds that this is speculative and also that complaints that small firms would be disproportionately affected because of the costs in complying are speculative as well. What if the employee is gone by the time the no-match letter arrives? An employer is not obligated to act on a no-match letter for employees no longer employed by them. Aren’t SSA and DHS databases unreliable? DHS admits that the SSA and DHS databases have problems (as evidenced by GAO studies). But they say a no-match letter is nothing more than an indicator of a problem and that this does not warrant alone stopping the changes proposed in the rule. DHS does believe that the system has reached a very high degree of reliability, however. Won’t this rule encourage identity theft? DHS denies it, but critics are concerned that the only step left for workers is to ensure that a social security number and name match and the only way for an unlawfully present worker to ensure this is to usurp someone’s identity. DHS believes the criminal penalties for identity theft will act as a sufficient deterrent.
Concerns about whether complying with the safe harbor provisions of the No-Match rule released today by DHS will expose employers to liability under IRCA's anti-discrimination rules (which are enforced by the Justice Department) have been addressed in a statement published by DOJ online today:
An employer that receives an SSA no-match letter and terminates employees without attempting to resolve the mismatches, or who treats employees differently or otherwise acts with the purpose or intent to discriminate based upon national origin or other prohibited characteristics, may be found by OSC to have engaged in unlawful discrimination. However, if an employer follows all of the safe harbor procedures outlined in DHS’s no-match rule but cannot determine that an employee is authorized to work in the United States, and therefore terminates that employee, and if that employer applied the same procedures to all employees referenced in the no-match letter(s) uniformly and without the purpose or intent to discriminate on the basis of actual or perceived citizenship status or national origin, then OSC will not find reasonable cause to believe that the employer has violated section 1324b’s anti-discrimination provision, and that employer will not be subject to suit by the United States under that provision.
No-Match Letter final rule - Free Legal Forms
Secretary Chertoff will have a press conference today to discuss the nrule and also talk about the state of immigration enforcement at 11:30 eastern time this morning.
The National League champs from Philadelphia were the 3-2 victors in tonight's opening game of the 105t Major League Baseball World Series. Each team has a number of immigrants from a variety of countries making this truly a WORLD Series.
Tonight I honor the immigrant ballplayers on the Phillies.
Carlos Ruiz - Panama -Catcher
Pedro Feliz - Dominican Republic -Third Base
Matt Stairs - Canada - First Base
So Taguchi - Japan - Left Field
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org