It seems that Immigration is always in the news in some way, especially here in South Florida. One of the current hot items on the agenda is stepped up enforcement in the workplace, which is putting many employers in the precarious position of becoming immigration law enforcers within their companies and businesses. Last month the Department of Homeland Security (DHS) announced more stringent rules and enforcement of those rules in regards to workers whose social security number does not match what the government has in their system. This is meant to stop or deter employers from hiring undocumented immigrants. For years now the Social Security Administration (SSA) has been informing employers that the Social Security numbers they provided on W-2 Forms for certain employees do not match the SSA's records by way of what is commonly known as a "No-Match" letter. But those letters were often thrown away or ignored by employers, especially after they read the portion of the letter that warns that they may be subject to a discrimination law suit if they fire anyone based on these letters.

Starting next month (unless the recently filed AFL-CIO lawsuit against the government to block the rule succeeds), the SSA will be sending out the “no-match” letters together with a letter from Immigration and Customs Enforcement (ICE) that is meant to provide the employer who receives the letters with additional guidance on how to respond in a manner that is consistent with obligations under United States immigration laws. These letters can no longer be ignored without opening the employer up to possible penalties. The new ICE regulations require an employer to inform the employee of the “no-match” and for both to remedy the problem within 90 days. If that is not possible, the employer will be left with a difficult decision- fire the employee or take the risk of being deemed as knowingly hiring an illegal worker, which could result in fines and criminal prosecution.

This move represents the latest in the national crackdown on illegal immigrants and the businesses that employ them. But remember, just because a “no-match” letter is received on an employee, this does not automatically mean that the employee is an illegal immigrant- in fact a US citizen can receive a “no-match” letter too! There are many reasons a social security number may not match – it could be as innocuous as a clerical error or a name that was changed after marriage but not properly reported. Simple errors can be quickly taken care of by the employee, who will surely be relieved to get the matter straightened out. The important factor with the advent of these new rules will be to determine when the “no-match” is a simple error that is easily corrected, or whether there is a deeper issue that the employer will have to address, such as the employee being ineligible to work because of their immigration status (or lack thereof).

On August 31, 2007, the U.S. District Court for the Northern District of California issued a temporary restraining order against DHS and the SSA to enjoin and restrain them from implementing the new rules (AFL-CIO, et al. v. Chertoff, et al., N.D. Cal. Case No. C 07 4472 CRB). The AFL-CIO’s lawsuit argues that increased scrutiny of Social Security numbers will result in errors and threaten the jobs of legal and American workers. In a statement, DHS said the lawsuit was "an obvious attempt to impede the department's ability to enforce our immigration laws. It is completely without merit and we intend to fight it vigorously." The new rules were supposed to go into effect on September 14, but the temporary restraining order has put a hold on the effective date, at least for the time being. The next hearing on the matter has been set for October 1, 2007.

Assuming the US Government prevails, what will this rule mean for our community? South Florida could face potentially huge problems as there are a large number of undocumented workers here, especially in certain industries, for example, the construction industry. Developers and contractors take advantage of the availability of low-cost labor to stay competitive in South Florida’s aggressive construction market by hiring undocumented labor. Other industries such as tourism/hospitality and agriculture will also be hard hit, maybe even worse in central Florida than here in South Florida. It is hard to say what would be the impact exactly, especially when we have inaccurate counts of the illegal population, but these employers who do hire significant amounts of undocumented workers will be in a tenuous position- having to fire the workers or face hefty fine, either of which could be devastating to the company and cause it to lose competitive edge or even go out of business. This is why it is important to legalize the workforce that is already actively contributing to American industry and business. Employers should not have to be immigration enforcers. At the same time, the hiring of illegal workers is not something a company should make a part of their business model (unless they don’t mind breaking the law and opening themselves up to serious penalties). In this conundrum we can see the need for logical and reasonable immigration reform which should include, among other provisions, an earned pathway to legalization for undocumented workers already contributing to our economy, and smart worksite enforcement mechanisms that do not unnecessarily burden employers.

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