Special Report: Immigration Enforcement Update, February 2008
As opinion polls continue to indicate immigration remains a top political issue,
the U.S. Department of Homeland Security (DHS) is moving ahead with a revised Social
Security Administration (SSA) "no-match" letter rule and other immigration enforcement
efforts that target employers. This report provides an update on the revised no-match
rule; summary of DHS' latest immigration enforcement efforts; and discussion of
key immigration reform developments at the state and local levels and how these
initiatives may affect the debate about comprehensive federal immigration reform.
Update on DHS' SSA no-match letter rule
After having its original proposal blocked in 2007 by the U.S. District Court for
the Northern District of California, DHS is expected to release a revised SSA no-match
rule in the near future. The revised proposal purportedly will attempt to rectify
the deficiencies identified by the court in the original rule DHS issued in August
2007. The original rule would have required employers to take certain steps to confirm
the work eligibility of employees who are the subjects of no-match letters. Employers
would have been required to terminate workers whose eligibility information cannot
be rectified within 93 days or risk being deemed to have "constructive knowledge"
of employing illegal workers. "Constructive knowledge" is the legal standard for
enforcement under the Immigration Reform and Control Act of 1986.
In October 2007, the U.S. District Court for the Northern District of California
blocked DHS and the SSA from implementing the no-match rule in litigation brought
by a coalition of business and labor groups (in which NRCA is a named plaintiff).
U.S. District Court Judge Charles Breyer found DHS had not performed a Regulatory
Flexibility Analysis as required by the Regulatory Flexibility Act (RFA), and, therefore,
its certification that the final rule would not have a significant effect on a substantial
number of small entities lacked credibility. The judge found the "plaintiffs have
demonstrated they will be irreparably harmed if DHS is permitted to enforce the
new rule." DHS appealed the court's ruling. It also indicated it will conduct the
proper economic analysis as required by law and then will reissue a revised proposal
that addresses Judge Breyer's concerns.
The new DHS no-match proposal is reportedly in the final stages of review at the
Office of Management and Budget. There have been reports the revised rule will,
when formally issued, provide for a 60-day public comment period, which would provide
ample opportunity for NRCA and other interested groups to respond. However, other
sources indicate there may only be a 30-day comment period, which could constrain
efforts to provide constructive input for such a complex rule. NRCA, as co-chair
of the Essential Worker Immigration Coalition (EWIC), is working with other business
organizations on strategies for responding to the revised no-match rule once it
is issued. This includes an effort by EWIC to retain an experienced economist to
conduct an economic analysis of the original regulation in anticipation of DHS'
revised proposal and potential further litigation regarding this matter.
New DHS/ICE enforcement effort
U.S. Immigration and Customs Enforcement (ICE), the investigative arm of DHS, recently
initiated a nationwide enforcement campaign that could potentially affect NRCA members.
The new enforcement effort consists of ICE inspections that involve serving administrative
subpoenas demanding employers produce I-9 forms for all current employees and employees
terminated during the past year. In addition, the subpoenas request that targeted
employers provide ICE with any Social Security no-match letters received in the
prior three calendar years. The subpoenas may also demand copies of employers' most
recent payroll reports, certified lists of all current employees hired after Nov.
6, 1986, and other business information.
ICE's issuance of these administrative subpoenas appears to be an attempt to work
around the U.S. District Court's ruling blocking implementation of the DHS no-match
regulation. This ICE "phishing" expedition is of serious concern to NRCA as it appears
there are substantial deficiencies in ICE's legal authority to demand no-match letters
from employers. Under current law, ICE does not have the authority to obtain copies
of no-match letters from the SSA unless such information is relevant to a pending
or anticipated criminal investigation of the subject employer. Moreover, administrative
subpoenas are not self-enforcing, meaning a recipient is not legally required
to comply with the subpoena. Furthermore, DHS is supposed to include a $30 check
made payable to the recipient of the subpoena because the employer is technically
a "witness" for purposes of the subpoena.
NRCA is providing a sample response employers may want to use to respond to an ICE
subpoena. The following suggested text has been provided by Laura Reiff of Greenberg
Traurig, counsel to EWIC:
"ICE has requested through Administrative Subpoena #_______________ all "Employer
Correction Requests and Requests for Employee Information issued by the Social Security
Administration for the tax period of (2004 - 2005)." Company is cooperating with
this investigation even though there are serious legal deficiencies in the administrative
subpoena. Please note that the regulations set forth the legal requirements and
procedures for ICE to issue an administrative subpoena. The administrative subpoena
does not follow the legal requirements, it is not issued on the Form I-138 and it
is not signed by the proper signatory as envisioned and set forth in regulation.
The language of this subpoena is also substantively deficient and far reaching as
ICE does not have the jurisdiction to obtain the requested information."
NRCA will provide further information to members with respect to this enforcement
effort as further developments warrant. Any NRCA member who receives an ICE subpoena
is encouraged to inform NRCA's Washington, D.C., office so the extent of this effort
and its potential effect on members can be more thoroughly ascertained.
State immigration reform developments
With the failure of Congress to approve comprehensive immigration reform legislation
in 2007 and the prospects for further action by Congress for comprehensive reform
before 2009 extremely remote, many state and local governments are moving forward
with immigration enforcement initiatives. During 2007, more than 1,500 immigration-related
bills were introduced at the state level, more than three times the number during
2006. More than 200 of these immigration-related bills have become law, including
bills that impose new conditions and sanctions on employers. However, state and
local immigration laws may be of questionable constitutional validity because many
legal experts believe the U.S. Constitution gives the federal government sole jurisdiction
over the regulation of immigration. This situation is producing extensive litigation,
some of which NRCA is involved with on behalf of its members.
Arizona's Legal Workers Act, approved by the legislature and signed by Gov. Janet
Napolitano (D) in 2007 is considered a bellwether state immigration initiative.
The act provides for the suspension or revocation of business licenses for any employer
that knowingly employs an unauthorized worker(s). In addition, the law mandates
use of the federal E-Verify program by employers to electronically verify the immigration
status of their employees. Currently, the E-Verify program is voluntary. The act
became effective Jan. 1.
A coalition of business groups, including NRCA, is a plaintiff in litigation to
challenge the Arizona law in U.S. District Court on federal pre-emption and due
process grounds. In December 2007, District Court Judge Neil Wake ruled against
the plaintiffs largely on technical grounds, and the suit was refiled. At a subsequent
hearing, Judge Wake largely upheld the law. At yet another hearing in January, Arizona's
county attorneys agreed to wait until March 1 before prosecuting complaints filed
under the new law, pending clarification of some aspects of the statute by Judge
Wake. However, businesses that are charged under the new law as of Jan. 1 could
be prosecuted after the March 1 date. One of the primary disputes is whether the
law applies only to employees hired after Jan. 1 or to all employees regardless
of date of hire. Judge Wake expects to issue another ruling in early February. It
appears likely Judge Wake's final decision will be appealed to the 9th U.S. Circuit
Court of Appeals.
Another prime example of state/local immigration action is in Pennsylvania where
the small town of Hazelton enacted a series of ordinances in 2006 aimed at curtailing
illegal immigration through sanctions on employers and landlords. The Hazelton laws,
which have served as templates for similar efforts in other states, have been blocked
from taking effect by a federal judge, primarily on pre-emption grounds. Hazelton
has appealed the judge's decision to the 3rd U.S. Circuit Court of Appeals, and
both sides are expecting a protracted legal battle that will end up in the Supreme
Court. The outcome is likely to affect many other state and local immigration measures
and could have implications for future action by Congress for comprehensive immigration
Oklahoma is another state that has enacted a major immigration reform law that likely
will have broad implications nationwide. The Oklahoma law, regarded by some as the
toughest crackdown on illegal immigration in the country, requires employers to
use federal databases to verify their employees' immigration status and establishes
new sanctions for employers who hire illegal workers, among other provisions. So
far, the law has been upheld by a U.S. district judge but still faces further litigation.
To illustrate how convoluted the situation has become, Inola, Okla., recently passed
its own immigration ordinance that places other new burdens employers. The Inola
ordinance appears to conflict with Oklahoma state law and federal immigration law.
But not all state and local immigration-related laws that have been enacted in recent
months are punitive to employers or workers. The Illinois General Assembly approved
a measure that prohibits companies from consulting federal databases such as E-Verify
to prevent the hiring of illegal immigrants. Not surprisingly, the Illinois law
is being challenged in court by the U.S. Department of Justice. Also, New Haven,
Conn., has approved a program to issue municipal identification cards so illegal
residents can open bank accounts and use other services that traditionally have
required a driver's license. These examples illustrate the wide diversity in the
nature of immigration initiatives at the state and local levels.
However, it is clear most state and local laws are focused on employers as a linchpin
of the government's immigration enforcement efforts, which is bound to intensify
adverse effects on employers. Moreover, the existence of widely different and sometimes
conflicting statutes in different states poses even greater challenges for multi-state
employers. In addition, the proliferation of state and local immigration laws could
significantly affect economic growth. For example, Oklahoma government officials
recently blamed the state's strict immigration law for a dramatic reduction in the
number of business license applications since the law took effect.
As challenges faced by NRCA members and all employers as a result of increased immigration
enforcement measures at the federal, state and local levels continue to intensify,
the need for comprehensive federal reform becomes even more acute. NRCA will be
communicating this message to Congress and others involved in the immigration reform
debate in 2008 and beyond.
If you have any questions or have received an ICE administrative subpoena, please
contact Duane Musser, NRCA's senior director of federal affairs, at (800) 338-5765
or (847) 493-7565 or firstname.lastname@example.org.