Reid Backs Decision to Block Immigration Enforcement Rule

July 7, 2008 - 7:32 PM

(CNSNews.com) - Senate Majority Leader Harry Reid (D-Nev.) said Thursday he supports a decision by a district court judge that halts new Department of Homeland Security rules designed to make businesses accountable for employing illegal immigrants -- but the senator seemed confused over the court decision itself.

The new rules set guidelines for companies to follow when some of their workers' Social Security numbers do not match federal records. The point is to correct any number discrepancies and, in some cases, uncover illegal workers.

In a conference call with reporters Thursday, Reid described U.S. District Court Judge Charles Breyer's decision as having not granted an injunction to prevent enforcement of the new rule, and as a decision to indefinitely postpone progress on challenges to it.

"I am a great believer in the court system. It's not as if some judge made an off-hand opinion," Reid said. "This is something that he had arguments made before him. It was briefed. A decision was made not to grant an injunction. He held hearings and he said look, come back later, indefinitely this has been indefinitely postponed."

But Breyer did grant a preliminary injunction against enforcement of the new rule. As Breyer, a judge for the Northern California District, wrote: "The balance of harms tips sharply in favor of plaintiffs [a coalition of labor unions] and plaintiffs have raised serious questions going to the merits [of the rule]."

He ordered the parties, which include the unions bringing the complaint and Homeland Security Secretary Michael Chertoff, to submit proposals for the next step in the procedure by Friday, Oct. 12.

When asked for clarification on Reid's comment Friday, spokesman Jim Manley said in an e-mail to Cybercast News Service that the senator "supports the court decision" and that there was "nothing more to add."

The August 2007 rule issued by DHS places more responsibility on employers to follow up on "no match" letters from the SSA, as mentioned, but also provides "safe harbor" guidelines which, if followed, will prevent employers from being held liable if DHS determines an employee is an illegal immigrant.

No match letters are notifications sent from the Social Security Administration (SSA) to employers to point out discrepancies between information provided on employees' W-2 tax forms and information in the SSA database.

SSA points out in the no match letters that they are not a good indicator of legal status because mismatches can occur for a variety of reasons, including typographical errors and name changes.

But according to the SSA inspector general, in recent years the letters have been sent only to major offenders, businesses filing more than 10 problematic W-2s representing more than 0.5 percent of their W-2s. In Tax Year 2002, SSA sent 95 employers more than 1,000 no match letters each.

The new DHS rule includes the no match letters in examples of notifications that would make an employer legally liable for knowingly employing an illegal immigrant. But the rules also provide guidelines employers must follow to protect themselves.

The rule would give employers 60 days to verify that the mismatch was not caused by a typographical error or a lag in updating information like might happen with a name change due to marriage. If the discrepancy cannot be resolved, "then the employer must choose between taking action to terminate the employee or facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien."

Opponents of the measure say no match letters were never intended to be used to verify an employee's legal status. Breyer said in his decision that the policy could result in "the termination of employment of lawfully employed workers."

"In the Court's view ... if allowed to proceed, the mailing of no-match letters, accompanied by DHS's guidance letter, would result in irreparable harm to innocent workers," Breyer wrote.

In a statement expressing disappoint with the ruling, Chertoff defended the new policy, which he said "gives employers clear guidance on what to do if they receive a letter from the Social Security Administration communicating than an employee's name does not match the Social Security number it has on file."

"If an employer follows the regulation's guidelines in good faith, which entails various steps to rectify the no-match within 90 days of receiving the letter," Chertoff said, "U.S. Immigration and Customs Enforcement will not use the letter as evidence in an enforcement action against the employer."

"If the company does nothing to resolve the problem it can be held liable for employing an unauthorized worker and could face stiff penalties or sanctions," he said. "Ultimately, employer diligence will make it more difficult for illegal aliens to use a fraudulent social security number to get a job."



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