| Employer Compliance: Social Security No-Match Letters |
It is common knowledge in immigration circles and beyond that for many years
workplace enforcement has been one of the laughable spots of U.S. immigration
policy. The old rules worked more or less than this:
Since an employer cannot be deemed an expert on counterfeit documents, and
since employees are required to show evidence of work authorization, it was
sufficient for the worker to present a fake I.D. (readily available on the black
market for about $30) and make up a Social Security Number for the employer to
wash its hands of the matter and claim he had done everything that was required.
This obviously was and still is an outrageous lie, one perpetrated at every level of
both the private and the public sectors: on one hand, the employer could claim that
it had done everything he could to ascertain the legal status of the worker while
consciously avoiding the issue of the true immigration status of the worker; on the
other hand, the government could stick its head in the sand and claim that I-9
compliance prevents unauthorized employment.
This somewhat cozy arrangement was indeed necessitated by the lack of a
comprehensive immigration system of laws and made up for:
a) the lack of an efficient and legal system to bring low-skilled or temporary labor
to this country;
b) the perennial need of some sectors, especially the agricultural, construction,
manufacturing, and tourism industries, for workers willing and able to work and
tasks typically scorned by the U.S. population and way beyond what is currently
offered by the U.S. labor pool;
c) the presence of millions of undocumented workers eager for work and looking
to earn a living.
Of course, the sand castle built so far is threatened by the very existence of the
so-called "social security no-match letters": upon receiving payroll withholdings
not matching its records, the Social Security Administration can easily verify that
the social security numbers provided to the employer are either fake or do not
match the taxpayer's name and other vital records.
This poses an immediate dilemma: since the Social Security Trust Account is in
perennial deficit and projected to go bankrupt in the near future, do we really want
to stop the flow of funds to the tune of several billions dollars a year? For this
reason alone, if anything else, the SSA has traditionally been reluctant to share
information with the now defunct Immigration and Naturalization Service (INS)
and now with Immigration and Customs Enforcement (ICE).
However, the SSA has for quite some time had a policy to notify some of the
larger employees of the problem with the so-called no-match with a letter. Receipt
of the Social Security letter in turn raised an obvious question: what does an
employer faced with a no-match letter have to do to be able to keep denying
knowledge of undocumented status of the worker and keep its business alive?
Surprisingly enough, the answer for many years has been "nothing".
Legacy INS memoranda made abundantly clear that the receipt of a no-match
letter alone was not ground for inferring the unauthorized status of the employee,
and could not by itself be ground for dismissal.
This was of course another fanciful way to save face while denying the obvious:
there are millions of undocumented individuals in the United States, businesses
throughout the country depend on them, the moribund Social Security Trust Fund
has been surviving in part because of them, and, enforcing a dysfunctional set of
immigration laws that do not provide an efficient way to legally bring here these
same workers could wreak serious havoc on the U.S. economy, not to mention
strain precious enforcement resources that some argue should be deployed to keep
terrorists and other security risks outside of the United States.
Now this delicate system of lies is coming to a halt.
ICE has announced a new set of rules that will not provide such a simple way out
to employers, and at the same time raises the specter of more employer sanctions
upon future enforcement actions. The concept of "constructive knowledge" i.e.
knowledge imputed to the employer who knew or should have reasonably known
that the worker is not authorized to work, has found its way into ICE policy.
This readily applies to the employer who receives a no-match letter. No longer the
employer will be able to simply disregard the SSA. Inaction after receipt of a
no-match letter can be considered constructive knowledge and burst the bubble of
willful avoidance that has so far protected businesses of all kind. It is very
conceivable that in the future employers and not only the workers will suffer the
consequences of raids and other enforcement actions in the workplace. It will be
easier in the future for the government to build cases against employers who
willfully disregarded the questionable nature of the employees work authorization
documents.
While this in itself is somewhat laudable (while should the undocumented workers
who will be deported the only ones to suffer consequences), the issue remains of
what policy do we want to achieve and how is business going to cope with a
stepped-up enforcement environment.
One is left to wonder what this will accomplish, and, what the ultimate costs and
benefits will be. Will this another law left on the books and not applied in the real
world? Will the government and business find another way not to look at the pink
elephant in the room? Or will these rules be carried to their extreme consequences?
If they are, it is possible that in the short term we could witness a heightened
enforcement climate, factory raids, removal proceedings separating undocumented
workers from their US born, US citizen child, and, legal actions against employers.
Businesses will have to scramble to revisit their compliance and retention policies
to make sure that they are shielded from possible charges, and massively proceed
to layoff questionable workers.
Regardless of the outcome, the turmoil should make everyone reflect: is this the
society we want for ourselves? Are we not hurting ourselves in the process? Is
there a better way to deal with these problems? Should we not try to change the
law as it is written?
Everyone should look beyond their petty, individual interest and try to see the big
picture. Beyond the lobbies, the interest groups, big business, small business,
advocacy groups, unions, laid off domestic workers, politicians facing reelection,
there lies a collectivity we call a nation, and, somewhere, a superior, common
interest. Different minds can differ on what that is, or how we can achieve it, but
in order to survive as a nation we will have to find it.
Some people seem to think that the solution is to be enforce existing laws as they
are written.
I personally disagree, and think that this approach will not only hurt and divide the
nation deeply, but will be ultimately impossible to achieve. I have been dealing with
US Immigration laws for the better part of twenty years, am an immigrant myself,
and have first knowledge of many of the issues presented. I am deeply persuaded
that the set of rules in effect now are unbalanced, dysfunctional, and do not
provide for a cohesive, effective system to regulate immigration patterns, enforce
domestic security, or provide businesses with a flexible and competitive
workforce. I believe that, unless something is changed, continuing on this path
will further erode U.S. competitiveness and standing in the world.
Time will tell who is right.
Law Offices of Giuseppe Scagliarini
| Giuseppe Scagliarini, Esq. 37 Harrison Avenue Newport, RI 02840 Phone: +401-849-1220 Fax +401-633-7055 E-Mail: info@scagliarinilaw.com |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| Law Offices of Giuseppe Scagliarini Immigration Lawyers - Immigration Attorneys - International Business Attorneys Boston, MA - Providence, RI - Newport, RI |