On the heels of Congress’ failure to pass an immigration reform bill, the Department of Homeland Security (DHS) is releasing a get-tough regulation that would force employers to either fire workers whose names and Social Security numbers don’t match or risk a fine of up to $10,000. Corporation and labor advocates both fear it could lead to mass layoffs of immigrants.
The regulation had been sitting in the hopper for a year as Congress debated immigration. As In These Times went to press, DHS Spokeswoman Laura Keehner declined to say whether the regulation’s deadlines and restrictions would loosen due to hundreds of comments that business, labor and immigrant-rights groups submitted last year, decrying the rule. Laura Reiff, co-chair of the Chamber of Commerce-sponsored Essential Worker Immigration Coalition, doesn’t expect substantial changes in the final draft. Her group will fight to delay the regulation’s start date and is considering legal challenges.
“It could fuel these document mills that help steal peoples’ identities because the numbers are going to match,” Reiff says. “There’s the potential for major plants closing down, employers losing good employees, employees going into the underground economy – it’s going to be pretty ugly.”
The Social Security Administration (SSA) sent out 138,000 letters to employers last year, advising them that an employee’s records were inconsistent, a situation that could arise from simple typographical error, marriage or purloined documents. In the past, many employers ignored the letters, but now receiving one could make employers liable for up to $10,000 in fines per unauthorized worker – if the company is among the small but rising number that undergoes a government audit.
Widespread job loss often results when the government dons its immigration-enforcement blinders. In 2002, the SSA sent out 1 million notifications of mismatched information, 10 times the number sent out the previous year. Employers responded by firing 100,000 workers listed on the letters, according to an estimate by the National Immigration Law Center (NILC).
Monica Guizar, an attorney with NILC, says employers use the no-match letters as excuses to fire senior workers and bring in lower-paid substitutes. Other employers use the no-match letter to get rid of workers who have complained about working conditions, have notified government agencies of violations of labor and safety laws, or are attempting to unionize.
Housekeepers organizing at a Woodfin Suites hotel in Emeryville, Calif., learned this lesson the hard way. “When we asked the hotel to [follow the local living wage ordinance], they began to intimidate us and threatened to turn us over to the immigration authorities,” says Maria Lopez, a former housekeeper. Management didn’t act on the SSA letters until workers began organizing – six months after receiving notification of mismatches, says Sarah Norr, an organizer with the East Bay Alliance for a Sustainable Economy. She says employers commonly use immigration status as a weapon to attack organizing workers in the hospitality sector.
Employers complain that by forcing them to become arbiters of document authenticity, the regulation deputizes them as border guards at the workplace door, a task made impossible by the unreliability of the methods employers have to verify workers’ documents. In 2002, researchers at Temple University reviewed the government’s voluntary pilot project that gives companies access to DHS and SSA databases to verify employment status. They found that the system rejected one of every five applicants with no discrepancy – including native-born citizens.
Recent reports confirm that significant errors still plague the programs that verify the employment status of new hires. A December 2006 survey conducted by the SSA’s Inspector General estimated that 17.8 million files would produce the wrong result when employers attempted to check. Another 3.3 million foreign-born residents who obtained citizenship but whose Social Security file doesn’t reflect the change would have to visit the agency’s branch offices to resolve the error before DHS’ system would give employers approval to hire them.
Grayci Rodriguez discovered how difficult it can be to clear the air when a no-match letter arrives. A Honduran native with permanent U.S. resident status and legal work authorization, Rodriguez nonetheless was informed by her employer, the North Carolina hog butcher Smithfield Foods, that she would be fired if she didn’t resolve the inconsistency. She made five trips to the office and obtained a letter from local Social Security officials confirming her authorization but was still fired.
Discrimination against job applicants who appear to be foreign rose sharply after the 1986 immigration bill, which legalized 3 million undocumented people but made it illegal for the first time to employ people who lacked work authorization.
In 1990, the General Accounting Office – as it was then known – sent testers (identical applicants with Anglo and Latino surnames) and surveyed employers on their behavior in employing immigrants. Ten percent of employers acknowledged changing their hiring and firing practices in discriminatory ways, such as refusing to hire applicants with foreign-sounding names or accents. DHS Spokeswoman Keehner says she isn’t aware of any specific plans to challenge discrimination by employers as the new regulation rolls out.