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Immigration - Employers in the Crossfire

Major candidates for President have privately stated that the number one issue on the campaign trail is immigration. The immigration issue is bigger than healthcare. It is even bigger than the Iraq war.

Everyone has questions. Employers probably have more questions than anyone.

For most employers, immigration enforcement becomes a reality when they receive a “no-match” letter. What is a “no-match” letter? When there is an inconsistency between a Social Security number given by an employee and the number on file with the Social Security Administration, the employer can receive a “no-match” letter.

On September 14, 2007, the U.S. Department of Homeland Security was scheduled to put into effect amended regulations requiring employers to take action after they receive a “no-match” letter. Enforcement of those regulations, however, was temporarily blocked after a lawsuit was filed in a California federal court. The U.S. Chamber of Commerce filed a brief in that action on behalf of employers.

A hearing was held in the federal case yesterday, October 1, 2007. The judge indicated he was leaning against the government’s case. He also said he would issue a final ruling within ten days. Until then, his ban on enforcing the new federal regulations remains in place.

Under current law, the fine for mismatched numbers has been relatively small. Some employers, even some clients of mine, have said that they treat those fines as a cost of doing business. They would rather pay the fine then lose the employees.

Under the new regulations, subject to the ruling of the California court, an employer would have 90 days after receiving a “no-match” letter to remedy the inconsistency with the Social Security number. If the inconsistency cannot be rectified and they continue to the employ the worker, the employer will face fines of up to $10,000 and prison sentences of up to six months.

On the other hand, if employers simply fire workers that are the subject of “no-match” letters, they can be subject to employment discrimination claims and wrongful termination claims. Unions are reported to be preparing to use the fear of immigration related termination in new unionization drives in industries that are traditionally non-union but hire large numbers of immigrants.

With worker shortages, immigration sanctions, discrimination liability, possible unionization activity and general HR issues, employers will be in the crossfire from all sides in this battle.

I will keep you posted on the status of the California court case and enforcement of the federal regulations. If the new rules do go into effect, I will give you a list of steps to take to follow those new rules.

Future issues of LegalBriefs will address issues such as – what you should do with expired I-9 forms and the steps that you must take if you verify Social Security numbers on your own using a third party service.

In the meantime, if you have any questions, please do not hesitate to give me a call.

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