DHS Announces “New” No-Match Rule

In a press release issued by the American Immigration Lawyers Association (AILA) on March 21, 2008:

The Department of Homeland Security today announced a “supplemental proposed rule” concerning the actions required of employers who receive “no-match” letters from the Social Security Administration. Rather than making changes in the substance of the previous rule, which was enjoined by a Federal District Court, DHS reiterates its same old arguments. The rule’s bottom line remains unchanged: employers may believe they have no choice but to fire any employee who cannot resolve within 90 days a social security records discrepancy.

“The Social Security Administration is charged with administering social security benefits, and is not structured or oriented to be an immigration enforcement tool. This misguided attempt to fit the square peg of immigration enforcement into the round hole of social security benefits is a guarantee of increased discrimination and erroneous terminations,” stated Kathleen Campbell Walker, President of the American Immigration Lawyers Association.

One predictable result of implementation of this rule will be unwarranted firings due to database errors and predictable delays in obtaining documentation of status or database corrections. The SSA has emphatically and consistently stated that there are many reasons for a no-match record to be generated other than a lack of work authorization. Some of these reasons include: spelling errors, incomplete names, inversion of date order, valid name changes pursuant to divorce or marriage, as well as cultural differences in name order. The Administration should suspend the “no-match” effort until the database achieves acceptable levels of accuracy and until employers and employees have efficient mechanisms to correct data errors and to obtain status confirmation.

“This unchanged regulation clearly leaves employers holding the bag as to Congress’ failures to create legal avenues to fill legitimate labor needs,” said Campbell Walker. “Employers will be left with a Hobson’s choice – keep the employee while potentially being exposed to employment verification penalties or terminate the employee and face possible wrongful termination or discrimination charges. Where are the rational and predictable legal protections for employers trying to do the right thing?”

AILA InfoNet Doc. No. 08032140 (posted Mar. 21, 2008)