More Scrutiny Required Before Immigration Rules Take Effect

In an effort to slow the flow of illegal immigrants into the country, the Department of Homeland Security (DHS) wanted to revamp the way employers handled undocumented workers. When Congress did not pass the sweeping immigration legislation that DHS was hoping for in early 2007, the agency acted on its own to tighten enforcement of existing laws.

Here is a summary of the eight changes DHS announced, which were supposed to take effect in September 2007.

1. No-match letters. Employers who knowingly or unknowingly supply invalid Social Security Numbers (SSNs) for individuals as proof of their eligibility to work would receive no-match letters. After receiving such a letter, the employer would be required to take specified steps to correct the information. If eligibility could not be determined, the employer was supposed to terminate ineligible individuals. Failure to comply would lead to stiff penalties.

2. Simplified authentication. The list of 29 documents that can be presented to employers as proof of eligibility to work would be reduced to a more manageable list.

3. Higher penalties. Civil penalties would be increased for employers who knowingly hire illegal aliens.

4. Tougher investigations. Criminal investigations would be expanded for employers who knowingly hire large numbers of illegal aliens.

5.  E-Verify. New rules would require all federal contractors and vendors to use the "E-Verify" or Federal Electronic Employment Verification System to ensure that individuals on their payrolls are authorized to work in the United States. 

6. Expansion of data. Use of E-Verify would be broadened to include other data sources that can be checked, including visas and passports, and possibly state databases on a voluntary basis.

7. Seasonal workers. The Department of Labor would reform and streamline programs for seasonal employees in agriculture and non-agriculture industries, to allow a timely flow of labor while protecting the rights of the employees.
 
8. Professionals. The DHS would extend the visa terms for professionals from Canada and Mexico.

According to DHS Secretary Michael Chertoff. the new rules contain a safe harbor provision to protect employers that follow the guidance and attempt to comply. "We don't want to punish people who try to do the right thing," he said.

The problem of ineligible workers is potentially enormous. Out of the 250 million wage reports received by the Social Security Administration each year, up to four percent, or 10 million are non matches.

The DHS started the process of implementing the changes by sending out the first round of no-match letters to numerous employers. However, Judge Charles R. Breyer of the Northen District of California ordered that the letters, along with the new rules, be put on hold because there are flaws in them that violate people's rights. 

DHS is reportedly trying to rewrite the rules to overcome the judge's objections. We'll keep you posted.