The proposed safe harbor procedures for employers receiving “no match” letters from the Social Security Administration or the Dept. of Homeland Security have been criticized by an array of business associations, trade and other advocacy groups. Currently, the no match letters are issued when there are discrepancies between the employee’s name and social security number or work authorization. According to the U.S. Chamber of Commerce, the proposed rules would make employers liable for knowingly hiring undocumented immigrants if the discrepancy is not cleared up in 60 days. “[E]mployers should not be presumed guilty for what SSA readily admits could be a spelling error, name change due to marriage or divorce, or an incomplete W-2 form,” says the Chamber. The American Immigration Lawyers Association predicted that the rule change would promote discrimination and termination of lawful employment if verification did not come within the safe harbor time limits. The comment period for the proposed rules ended August 15.

Exhibiting its strategy of more aggressive worksite enforcement, the U.S. Immigration and Customs Enforcement arrested 1,282 persons at six Swift & Co. facilities in six states for immigration violations. Of these, 65 were also charged with identify theft or other violations, such as re-entry after deportation. Evidence uncovered in the investigation indicated that “hundreds” of the illegal aliens may have assumed the identities of U.S. citizens and their Social Security numbers to obtain employment. According to ICE, document fraud schemes have become more sophisticated due to new technology, where forgers use computer software and high resolution digital scanners to mimic actual documents.

The Dept. of Homeland Security has asked a federal court to halt proceedings in a lawsuit against the implementation of its "no match letter" rule to allow it to conduct additional rulemaking to address issues brought up by business and union plaintiffs in the case. On Oct. 10, 2007, DHS was enjoined from implementing its "Safe Harbor" rule, which would have required employers to take certain steps to resolve discrepancies in reported employee Social Security numbers and to terminate employees who can't be verified as authorized to work -- or face fines ranging from $250 to $10,000 per undocumented worker. According to the motion requesting the stay, DHS will use the time to prepare a Regulatory Flexibility Act analysis, and that "[a] stay will prevent the waste of judicial resources in litigating over a rule that is in the process of being revised." AFL-CIO v. Chertoff

The Dept. of Homeland Security has finalized and issued its rule requiring employers to terminate employees who can’t be verified as legal if there is a mismatch with their name and Social Security number—or face fines ranging from $250 to $10,000 per undocumented worker. The rule describes “safe harbor” procedures that the employer can follow in response to a no match letter; DHS assures employers who follow the procedures that it will not use the letter as any part of an allegation that the employer had constructive knowledge that the worker was an alien not authorized to work in the U.S.

U.S. Immigration and Customs Enforcement has notified seven Mainland companies that they will be considered for debarment from federal contracting because each has been found to be unlawfully employing persons without employment authorization.

"By using debarment in appropriate circumstances, the federal government can avoid working with businesses that employ an illegal workforce and unscrupulously undercut their competitors to gain an unfair market advantage because of reduced labor costs. This is yet another tool that we believe will further ensure compliance with our nation's immigration employment laws," says ICE spokesperson Julie L. Myers. The Federal Acquisition Regulations provide that contractors may be considered for debarment if they have been found to have either knowingly hired an unauthorized worker or to continue to employ an alien who is or becomes unauthorized.

A U.S. federal district court has issued a temporary restraining order against the implementation of the “no match” letter rule promulgated last month by the Dept. of Homeland Security. The rule requires employers to terminate employees who can’t be verified as legal if there is a mismatch with their name and Social Security number—or face fines ranging from $250 to $10,000 per undocumented worker. The order was sought by the AFL-CIO and the San Francisco Building and Construction Trades Council, among others. In its order, the court said “serious questions” were raised over whether the new rule was inconsistent with statute and beyond the statutory authority of both DHS and the Social Security Administration. The injunction covers the mailing of SSA’s no match letter packets to employers. A hearing on a preliminary injunction is scheduled for Oct. 1. AFL-CIO v. Michael Chertoff

The unauthorized alien working population is steadily growing, the Congressional Research Service reports, and outlines options for the Congress to consider to curtail unauthorized employment and related practices. Among the options: building on the current employment eligibility system to make electronic verification mandatory, increasing existing penalties, increasing resources for worksite enforcement, and shifting the responsibility for employment eligibility verification from employers to the federal government. CRS Report for Congress, Unauthorized Employment in the United States: Issues and Options.