A Government Plan for Enforcing Immigration Laws – Blocked by a Federal Court – Now Leaves

A federal judge temporarily blocked the Department of Homeland Security’s plan to crack down on businesses that hire illegal immigrants, but a prominent labor lawyer says small businesses aren’t out of the woods yet.

Every year the Social Security Administration sends businesses “no-match” letters when there’s a discrepancy between employees’ names and their social security numbers. Employers can then ensure the social security taxes employees pay are being credited to the right person.

But Homeland Security wanted employers to use the letters to ferret out illegal workers, although as part of the plan it gave businesses three months and a set of rules to clear up the discrepancy – guidance they hadn’t had before.

The court’s ruling leaves employers in the same murky situation that the new rules tried to clear up, says an immigration lawyer.

“The court’s ruling is not necessarily a victory for employers,” said Sean G. Hanagan, a partner at the law firm Jackson Lewis LLP. “There is a real need to clarify an employer’s obligations when they receive a ‘no-match’ letter, and these proposed rules were the government’s first attempt. The Social Security Administration will continue to send ‘no-match’ letters, and without clarifying the rules, the huge uncertainty over how to deal with them stands unresolved.”

In the past, the government has used a business’ flagrant disregard of the letters as proof that the business knew, or should have known, that its employees were illegal immigrants.

The court’s ruling today was a victory for civil rights groups, unions and business, which contended that Homeland Security was putting too heavy a regulatory load on employers.

“These letters were created to help employees, but the government wanted to use them to put small businesses squarely in the middle over illegal immigration, creating a huge burden,” said Milan P. Yager, executive vice president of the National Association of Professional Employer Organizations, or NAPEO. “Congress failed to act on immigration last summer, and now it needs to take up the issue again and make clear rules businesses can live with – or small businesses, their workers and the entire economy will continue to be at risk.”

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For more information visit www.napeo.org.

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