WARNING: Op-Ed piece supported by 3 lib-idiots: an immigration lawyer, the Raleigh News&Observer newspaper, and the McClatchy Co., the company from California that owns the Raleigh newspaper.


Point of View: Published: Aug 27, 2007 12:30 AM Modified: Aug 27, 2007 01:41 AM
Immigration law vs employers: an imperfect match

http://www.newsobserver.com/opinion/col ... 83547.html
Laura Burton

RALEIGH - When the U.S. Senate was unable to settle on comprehensive immigration reform earlier this year, elected officials across the country took matters into their own hands.
According to the National Conference of State Legislatures, nearly 1,200 immigration bills and resolutions have been introduced at the state level, already more than double the number of 2006. Overall, immigration bills on employment have been proposed in 41 states, including North Carolina, while 18 states have passed such bills into law.

Local governments around the country have also passed immigration laws, and at least one has been judged unconstitutional when challenged.

In Hazelton, Pa., a federal judge ruled against a local law that imposed fines on landlords who rent to illegal immigrants and denied business permits to companies that give them jobs. The law would also have required tenants to register with City Hall and pay for a rental permit.

A Hispanic group sued Hazelton in federal court, saying that only the federal government has the right to regulate immigration. The court agreed, holding that the law was unconstitutional as an attempt to supersede federal law.

While proposed state laws could create more legal uncertainty, employers are already struggling to comply with established federal requirements. Now comes word that some of those federal requirements are about to change.

In early August, the Department of Homeland Security released a final Immigration and Customs Enforcement "no-match" regulation, set to become effective for all employers beginning Sept. 14.

The "no-match" regulation is intended to clarify the steps employers must take in response if they get a letter from the Social Security Administration indicating that an employee's Social Security number did not match any records in the database.

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SOCIAL SECURITY SENDS APPROXIMATELY 140,000 SUCH LETTERS ANNUALLY to employers with 10 or more employees with data discrepancies. These discrepancies may arise from typographical errors, name reversals, failure to update name changes, numbers that do not exist in the system or that do not match the name provided.

Of particular concern is a December 2006 Social Security report demonstrating that the database used to generate the "no-match" letters contains errors relating to roughly 17.8 million records on file. These errors may negatively impact employers, who must take action in reliance on a flawed system or face severe penalties.

The regulation requires employers to take the following specific steps in response to a "no-match" letter: 1) verify within 30 days whether the discrepancy is due to employer clerical error; 2) request that the affected employee(s) confirm the accuracy of the employer's records; 3) require employees to resolve the discrepancy with Social Security; 4) if steps 1-3 resolve the issue, provide correct information to Social Security; and 5) in cases where the discrepancy is not resolved within 90 days, attempt to re-verify work authorization by properly completing a new I-9 form within three additional days, without using any of the questionable documentation, and by requiring a photo identity document.

If this is not possible, the employer must terminate the employee or face sanctions from Immigration and Customs Enforcement.

According to Homeland Security, employers who follow these steps precisely will be afforded a "safe harbor" in which they will not face sanctions from the agency during a civil or criminal inquiry, or liability to employees terminated in response to mismatches unresolved within the required time period.

However, there is no guarantee that any safety will actually be assured by the new rules.

By following the regulation as required, employers may face a difficult choice -- terminate employees who cannot resolve the mismatch within 93 days, and face potential discrimination or document-abuse lawsuits from the terminated employees, or continue to employ the individuals and face substantial civil and criminal penalties from Homeland Security.

The new regulation will place additional burdens on employers already struggling to comply with conflicting federal requirements and will increase uncertainty in the workplace.

While careful compliance with federal laws offers employers a layer of protection in their efforts to prevent unauthorized workers from entering the work-force, there no existing system can prevent identity theft or completely bar unauthorized employment in the United States.

Simply adding a layer of state and local laws, or additional federal requirements, will not solve the underlying problem and could open employers to liability for their responses to conflicting laws or to charges of discrimination on the basis of national origin.

(Laura Burton is an attorney in Raleigh, specializing in international and business immigration law. She is chair of the N.C. Bar Association's International Law and Practice Section.)