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Why The Federal No-Match Rule May Hurt Innocent Immigrants

Employers have received a reprieve from the federal “no match” rule that would have punished businesses for hiring illegal workers, but the U.S. Department of Homeland Security (DHS) served notice last week that it’s refusing to give up on the controversial measure.

Homeland Security officials told the U.S. Ninth Circuit Court of Appeals that it is appealing a decision in October by a federal judge in San Francisco to temporarily suspend an effort to target workers with discrepancies in their Social Security information – part of the Bush administration’s crackdown on illegal immigration.

Business leaders and the American Civil Liberties Union have opposed the rule, in part, because they say it would place an unfair burden on employers, who would be required to fire employees if the discrepancies couldn’t be resolved within 90 days.

When Federal Judge Charles Breyer issued the injunction in October, local human resource departments were “breathing a sigh of relief,” said Dale Venturini, president and CEO of the Rhode Island Hospitality and Tourism Association. They believed the rule would be shelved until some congressional action was taken next year, she said.

But Homeland Security is taking action now.

“We’re accelerating this as fast as we can,” DHS spokeswoman Laura Keehner said last week. “We’ve very serious about it.”

Indeed, Homeland Security Secretary Michael Chertoff, in a strongly worded Web log that chided the ACLU for fighting the rule’s implementation, outlined what steps his department would take to get the so-called “no match” rule in place.

“Far from abandoning the rule, we’re going to fight hard to make it effective,” Chertoff wrote. “…Contrary to ACLU fantasies – we’re not going away.”

Homeland Security is taking a two-pronged approach: First, there’s the court appeal. At the same time, Chertoff said, DHS will attempt to revise the rule to address some concerns raised by Judge Breyer, including his conclusion that the government had failed to follow proper procedures in issuing the measure.

“We’re pursuing both options at once in order to get the quickest possible resolution,” Chertoff said.

The Social Security Administration has been issuing letters for years notifying employers if an employee’s name and Social Security number don’t match government records. The rule, which was initially supposed to go into effect in September, outlined how employers should proceed after receiving those notifications. Employers who failed to either resolve the discrepancy within 90 days or fire the employee faced stiff civil fines or criminal charges.

Frank Flanagan, an immigration lawyer at Sayer, Regan & Thayer LLP in Newport, believes the no-match rule has flaws, including “the potential to hurt innocent people,” he said.

Flanagan said the Social Security Administration’s records are filled with clerical errors and other minor problems that could trigger a no-match notification – problems that might take longer than 90 days to rectify. “You could snare a large number of legitimate employees along with the illegal ones,” he said. “Good workers could be fired.”

When clients call seeking advice after receiving a no-match letter from Social Security, Flanagan said he tells them not to fire the employee, unless it’s clear they are employed illegally.

But even with the future of the no-match rule uncertain, Flanagan said there will eventually be some type of reform. “[Employers] need to recognize that the climate has changed,” he said.

Susan Fabrizio, president of Flagship Staffing Services in Cranston, has numerous immigrant workers in her database of 700 professionals, administrators and skilled workers. But she has never received a no-match letter in the four years Flagship has been in business, and she doesn’t think the rule would be overly burdensome to her.

Still, she’s concerned. “They have to make sure it’s done right,” Fabrizio said last week.

Several other businesses contacted by Providence Business News last week declined to comment on the no-match rule. Flanagan said many of his clients would not want to comment publicly, either, because they believe immigration is a sensitive issue.

Venturini said she would notify her members of the new developments, expressing a bit of frustration that the issue hasn’t been put to rest. “After a while, people stop listening,” she said. “When you’re in the middle of the battle, many people only want to know who won.”

Developments on the no-match rule come as human resources departments are transitioning to a new I-9 form, which is used to verify an employee’s identity and their work status.

The new Form I-9 issued by the U.S. Citizenship and Immigration Services revises the list of documents needed to complete the form.

Prospective employees can no longer use certificates of U.S. citizenship, certificates of naturalization, permanent resident cards, re-entry permits or refugee travel documents.

Pat Reilly, spokeswoman for the DHS division of U.S. Immigration and Customs Enforcement (ICE), said the new form eliminates documents that had no photo attached and were easiest to counterfeit.

Employers must start using the new form no later than Dec. 26, officials said.