Thread: New immigration rules could force mass firings

http://triad.bizjournals.com


New immigration rules could force mass firings
Kent Hoover Washington Bureau Chief

September 4, 2006


Even if Congress fails to pass immigration reform legislation, new regulations and public pressure may make it harder for employers to keep hiring illegal aliens.

The Department of Homeland Security has issued proposed regulations that could force businesses to fire hundreds of thousands of workers if they can't resolve discrepancies between the Social Security numbers reported by employees and government records.

The agency also plans a major marketing push for its Basic Pilot program, a voluntary electronic system that employers can use to verify whether a new hire is eligible to work in the United States. Both the House and Senate immigration reform bills would require employers to participate in this program. Even if the program doesn't become mandatory, however, the public will question the motives of any business that doesn't participate, says Mark Krikorian, executive director of the Center for Immigration Studies.

"If you're not doing that, what's your problem?" he asks.

Krikorian, whose think tank favors strict enforcement of immigration laws, expects more companies to follow the lead of Dunkin' Donuts, which requires all of its franchisees to sign up for the Basic Pilot program.

U.S. Immigration and Customs Enforcement (ICE) also is rolling out a new program, called Image, that will reward companies that participate in Basic Pilot and follow other good hiring practices.

The number of employers participating in the Basic Pilot program has more than doubled this year to around 11,000. Gerri Ratliff, chief of DHS' verification division, says the program can verify the eligibility of 80 percent of new hires in three seconds.

Most of the businesses that have signed up are in industries that employ a lot of immigrants, she says.

"If they think they might be targeted for ICE enforcement, they're running right to us to sign up," Ratliff says.

Businesses: Wait for Congress
Business groups, meanwhile, hope to persuade DHS to hold off on issuing a regulation that outlines what employers should do when they receive letters notifying them that workers' Social Security numbers don't match government records.

Under the proposed regulation, employers would have 14 days to see if a clerical error caused the discrepancy and contact DHS or the Social Security Administration to correct it. If the employee says the number is correct, the employee should contact the agency. If the employee's eligibility to work can't be verified within 60 days, the employer should terminate the employee. Otherwise, it runs the risk of being prosecuted for knowingly employing an unauthorized worker.

The comment period on the proposed regulation ended Aug. 14. Business groups urged DHS to postpone the new rule until Congress acts on immigration reform.

"Taking a new regulatory position when Congress has proposed alternative approaches may needlessly confuse employers on what to do when no-match notices are received," the National Restaurant Association contends.

Most experts doubt the House and Senate will be able to resolve their differences on immigration reform, but Laura Reiff, an immigration attorney who co-chairs the Essential Worker Immigration Coalition, says there is "a move afoot" for a compromise.

She thinks the proposed "no-match" regulation is part of the Bush administration's effort to prove it is enforcing immigration laws and pressure Congress to create a legal mechanism for employers to hire now-undocumented workers. EWIC contends the U.S. economy needs these workers.

DHS now is filing criminal charges -- instead of seeking administrative fines -- against employers who knowingly hire illegal aliens. This year, the department has made arrests in about 450 cases.

"We've made some very dramatic strides over the last year with respect to interior enforcement," says DHS Secretary Michael Chertoff.

Turnaround time 'unrealistic'
Business groups, however, says "no-match" letters shouldn't be used to prosecute employers because of widespread errors in the Social Security Administration's database.

"Many of our members conduct background checks or utilize other means to verify an employee's Social Security number ... but nonetheless receive no-match letters on those very same employees," states the Building Service Contractors Association International.

Business groups also say the proposed regulation doesn't give employers enough time to resolve discrepancies.

"A 60-day turnaround time from a federal agency on a routine basis is optimistic," states the American Hotel & Lodging Association. "A 60-day turnaround to correct a discrepancy in paperwork when the processing system will most likely be overwhelmed by the heavy volume of requests is unrealistic."

Folks, this Basic Pilot Program is just another toothless fraud being perpetrated on working class Americans. Why is it that "most of the businesses that have signed up are industries that employ a lot of immigrants"? Simple. By doing so they can are afforded, by proxy, the appearance of strictly adhereing to hiring laws, while continuing to do business as usual....illegally.

The Basic Pilot Program works no differently than a SS mismatch letter, which states, in part:

* This letter should not be used as a basis, in and of itself, for taking adverse employment action against an employee whose SSN is listed.

* Use of information in the letter for taking adverse employment action could violate federal or state law.

So is it any wonder that the Basic Pilot Program requires that an employer FIRST hire the individual before checking their SS number? Wouldn't it make much more sense to check a potential employee's SS number BEFORE hiring them? Of course, but then that would defeat the whole purpose of this sham which is, clearly, to allow employers to continue to do business as usual....illegally.

Did you know that the SSA does not sanction employers, ever, for failure to respond to mis-match letters or BPP mis-matches? Nor do they share this information with DHS. In fact, now an employer can legally shift the responsibility of correcting these mis-matches to the employee while, at the same time, protecting themselves from being charged with "knowingly hiring" illegals.

Thats right. All the employer has to do after being notified of a SS mismatch (via letter or BPP) is to send a certified letter to the SSA within 60 days, informing them that they were unable to resolve the issue and that the employee has been notified that he must resolve this issue directly with the SSA. To avoid future charges of "knowingly hired" the employer need only send another certified letter to the name and address of said employee instructing him to do so. The receipts of these mailings, each costing less than 5.00, are all the employer needs to both comply AND avoid prosecution.

Having done that, one contruction industry website notes:

If the employer does not receive corrected information from the employee, the employer resolicits the information in each succeeding tax year until the correct information is received.