Published: 09.23.2006

New rules will track status of entrants
But Equal Opportunity agency warns of lawsuits
By Marisa Taylor and Kevin G. Hall
MCCLATCHY-TRIBUNE
"I don't think any company wants a bunch of employees with fraudulent Social Security numbers, or the Social Security numbers of children under the age of 5, or of dead people."
Dean Boyd
A spokesman for the Bureau of Immigration and Customs Enforcement, part of Homeland Security
WASHINGTON — The Department of Homeland Security isn't waiting for Congress to require employers to verify that they're hiring legal immigrants.

It's preparing new rules that would compel companies to take swift action when they receive notice that a worker may be using fake documents. But another federal agency warns that the proposed rule would be an invitation to discrimination lawsuits.
Congress is stymied over immigration reform, particularly legislation that would require employers to check workers' Social Security information.
So the DHS is moving ahead on regulations — expected by the end of the year — that would require employers to ascertain quickly an employee's immigration status if the Social Security Administration sends back a notice saying it found no match between an employee's name and Social Security number.
That directive comes even though Social Security's current "no-match" letter warns employers that taking action against their employees could "violate state or federal law and subject you to legal consequences."
Last month, the federal Equal Employment Opportunity Commission, which oversees workplace discrimination cases, wrote to Homeland Security warning that its proposed rule "may create circumstances in which employers have incentives to take actions that violate … non-discriminatory provisions."
Currently, when Social Security receives a W-2 earnings statement from an employer in which an employee's name and Social Security number don't match, a "no-match" letter is sent to the employer.
About 128,000 such letters were sent out this year for the 2005 tax year, roughly the same number sent for the 2004 tax year. The letters spell out what employers and employees must do to rectify the discrepancy but don't hold employers liable for workers who turn out to be illegal immigrants.
The new DHS rule would require the employer to check within 14 days to see if the mismatch was a clerical error and would give employees 60 days to prove theirr status.
Currently, there's no time limit for resolving a "no-match" discrepancy. The EEOC wants any new rule to give workers 90 days instead of 60 to resolve paperwork problems.
Employers that can't resolve any discrepancies either internally or by checking with federal agencies would be required to fire the workers or face federal prosecution or fines for hiring illegal immigrants.
Business groups complain that this leaves them vulnerable to enforcement actions if they don't comply and costly lawsuits if they do.
"Legally speaking, an employer has to very careful," said Scott Vinson, vice president of government relations for the National Council of Chain Restaurants. "If you terminate an employee without any other evidence, you could open up yourself to liability for civil-rights violations."
Dean Boyd, a spokesman for the Bureau of Immigration and Customs Enforcement, part of Homeland Security, disagreed.
"I don't think any company wants a bunch of employees with fraudulent Social Security numbers, or the Social Security numbers of children under the age of 5, or of dead people," Boyd said.
Employers who show that they tried to verify workers' identities and didn't know the workers were illegal would be in the clear.
"Knowing is the operative word," Boyd said. "If we go to a company and we find 50 illegal aliens, and the company says they looked at all the documents, they didn't know they were illegal, and the paperwork supports that, then they're in compliance."
The change would help agents go after companies that routinely seek out illegal immigrants or ignore signs like "no-match" letters.
"We have seen numerous cases where companies have hundreds of people on their payroll with bogus Social Security numbers," Boyd said.
Employer groups, however, question why the DHS is moving ahead with the rule when Congress is still narrowing differences between competing immigration bills that require mandatory verification of an employee's citizenship status.
"We thought it would be a smart thing for DHS to pause for a moment to wait and see … because this may ultimately have to be changed," said Vinson, who represents the chain restaurants. "From what I'm hearing, DHS does plan to proceed with this … and it's being fast-tracked."
Before the Sept. 11 terrorist attacks, immigration authorities rarely fined or prosecuted employers for hiring illegal immigrants, and the illegal work force grew to an estimated 11 million people over the past decade. After the attacks, authorities accelerated immigrant-worker sweeps and increased prosecutions of employers.
"I don't think any company wants a bunch of employees with fraudulent Social Security numbers, or the Social Security numbers of children under the age of 5, or of dead people."
Dean Boyd
A spokesman for the Bureau of Immigration and Customs Enforcement, part of Homeland Security

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