Judge Rules against DHS in Social Security "No-Match" Case

The Department of Homeland Security (DHS) may not carry out a controversial immigration enforcement policy announced in August, according to Judge Charles R. Breyer of the U.S. District Court for the Northern District of California. Judge Breyer issued a preliminary injunction last week in the case AFL-CIO v. Chertoff.

The decision prohibits DHS from sending out guidance letters with Social Security Administration (SSA) “no-match” letters. These guidance letters, part of a DHS rule entitled “Safe-Harbor Procedures for Employers Who Receive a No Match Letter,” would have instructed employers how to respond to a “no-match” letter to be in compliance with U.S. immigration law.

SSA expects to mail at least 140,000 “no-match” letters in 2007.

DHS Secretary Michael Chertoff, who was disappointed with the decision, said the government is considering all of its legal options. The DHS rule was critical to the Bush administration’s effort to step up interior enforcement since Congress rejected broader immigration reform in June.

SSA sends “no-match” letters to employers who submit more than 10 employee W-2 forms with information (names and social security numbers) that cannot be matched with SSA’s social security database, and whose mismatched W2 forms constitute more than 0.5 percent of all W2 forms the employer submits.

In his ruling, Judge Breyer agreed with the plaintiff’s argument that the DHS Safe-Harbor rule would cause thousands of employers to bear significant administrative expenses, and that the rule would likely lead to the termination of many legal employees, because of errors within the SSA database.

In addition, Judge Breyer said plaintiffs raised serious questions as to whether DHS has the authority to determine whether or not an employer can be sued for violating the 1986 Immigration Reform and Control Act’s (IRCA) antidiscrimination provision.

The guidance letters would have informed employers that, upon receipt of the “no-match” letter, they should attempt to correct the problem, or reverify the work authorization of each employee listed in the letter.

If a “no-match” problem were not corrected within 90 days, according to the guidance letter, and an employer could not verify that his or her employee had legal authorization to work in the United States, the employer should terminate that employee.

The DHS guidance letters state that if employers do not follow this DHS-outlined Safe-Harbor procedure, they could be found to have had “constructive knowledge” of hiring an unauthorized worker, and therefore be subject to prosecution. The rule also states that employers who follow DHS’s Safe-Harbor procedure” would not be liable for discrimination charges under IRCA’s antidiscrimination provision.

The plaintiffs in the case included an unusual alliance of interests, including the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) and the U.S. Chamber of Commerce. These groups feared the DHS rule would prompt layoffs in low-wage industries, affecting both unauthorized and legal workers.

SSA has sent out employer “no-match” letters since 1994. Sometimes, a “no-match” occurs because of a clerical or translation error on a W2 form, or because a worker has changed his or her name after a marriage or divorce.

A “no-match” is also triggered when an unauthorized worker gives an employer false information on a W2 form and the employer sends this W2 to SSA.

In 2006, the 10 states that received the greatest number of “no-match” letters were the same 10 states that had the greatest estimated number of unauthorized immigrants.

• Read the DHS Safe-Harbor Procedures rule here
• Read the MPI backgrounder about “no-match” letters and AFL-CIO v. Chertoff here.

Iraqi Refugee Cap Raised to 12,000 for 2008

The White House will raise the admissions cap for Iraqi refugees to 12,000, or approximately 15 percent of total refugee admissions for 2008. Between 2003 and 2006, 764 Iraqi refugees, approximately 0.4 percent of total refugee admissions over the same period, were resettled in the United States.

The government resettled 1,608 Iraqi refugees during fiscal year (FY) 2007, which ended September 30. The United Nations High Commissioner for Refugees (UNHCR) has referred 11,868 refugees for resettlement as of October 12.

Of the 4,300 Iraqi refugees the State Department’s Bureau of Refugees and Migration has interviewed in 2007, 735 have been rejected for resettlement due to a criminal background or inconsistencies in their stories.

In February, the White House promised to admit 7,000 Iraqi refugees in FY 2007, later revising that goal down to 2,000.

Various nongovernmental organizations, as well as some members of Congress, have criticized the Bush administration’s slow response to the Iraqi refugee crisis, including the resettlement of those Iraqis who became targets for helping the United States.

UNHCR estimates that nearly 3 million Iraqis have been displaced since the United States invaded Iraq in March 2003.

• Read more about the resettlement of Iraqi refugees in the United States in the February 2007 Policy Beat.
• Read the September 2007 Source article on Iraqi refugees here.

Policy Beat in Brief

National Guard on Southwest Border. Congress approved $794 million to extend the presence of National Guard troops on the Southwest border through September 30, 2008. Senator Jeff Sessions (R-AL) sponsored the amendment to the Defense Department Appropriations Act for 2008. Since arriving on the Southwest border in June 2006, National Guard troops have provided administrative and logistical support, thereby freeing up agents for patrols and for the training of new recruits. As of June 2007, nearly 5,800 National Guard troops were posted on the border, a number that declined to approximately 3,500 in August as the National Guard prepared to end the mission. The Border Patrol is working to add 6,000 new agents by the end of 2008.

• Read more about the Secure Border Initiative here.
• Read more about the deployment of the National Guard on the Southwest border in the June 2006 Policy Beat.
• Read more about the withdrawal of the National Guard from the Southwest border in the August 2007 Policy Beat.

2008 Refugee Admissions. The White House raised the refugee admissions cap for 2008 to 80,000, up 14 percent from 2007. The cap for the Near East and South Asia, which includes Iraq, increased over 400 percent from 5,500 to 28,000. The admissions cap for East Asia, which includes Myanmar, also rose dramatically, from 11,000 to 20,000 (80 percent). By contrast, the admissions caps declined for Africa (down 27 percent to 16,000), Europe and Central Asia (down 54 percent to 3,000), and Latin America and the Caribbean (down 40 percent to 3,000). The number of permissible discretionary admissions also declined 50 percent to 10,000.

• Read the Spotlight on Refugees and Asylees in the United States here.

Naturalization Exam. U.S. Citizenship and Immigration Services (USCIS) plans to implement a revised citizenship exam beginning with individuals who apply for naturalization after October 1, 2008. According to USCIS, the revised exam will reduce redundancy and better emphasize the concepts of democracy, U.S. history, and U.S. citizenship. The exam will include 10 civics questions, as well as reading, writing, and speaking portions. USCIS has posted the new test’s 100 potential civics questions, as well as study guides for the reading, writing, and speaking portions of the test, on its website. The Immigration and Naturalization Service — the predecessor agency to USCIS — began the test redesign in 2001.

• Read more about the redesigned naturalization exam here.
• Read more about the naturalization exam redesign process in the January 2005 Policy Beat.

Diversity Visa Program. The U.S. State Department's Diversity Visa Program is "particularly vulnerable" to fraudulent activity according to a recent report from the Government Accountability Office (GAO). Each year the congressionally mandated program conducts a lottery to give away 50,000 permanent resident visas to individuals from countries with low rates of immigration to the United States. GAO found that many program applicants commit identity or marriage fraud to convince U.S. consular officials of their eligibility for diversity visas. In addition, applicants may employ the services of phony "visa agents" or "visa consultants," who often exploit applicants. The report found that while there was no documented evidence that diversity-visa immigrants pose a particular terrorist threat, the prevalence of identity fraud has made many consular officers concerned that the program provides an "open door" for terrorists.

• Read the GAO report here.
• Read more about the Diversity Visa Program in the November 2002 Policy Beat.
• Read the Department of State's information on the Diversity Visa Program here.

Passport Processing Backlog. The U.S. State Department has eliminated a passport processing backlog that had frustrated many U.S. travelers over the past year. Passport demand began to climb in 2006 in advance of a federal rule called the Western Hemisphere Travel Initiative (WHTI). Effective as of January 2007, WHTI requires air travelers to have valid passports for travel to countries in the Caribbean, Mexico, and Canada. Previously, a driver's license or birth certificate was sufficient. As of September 7, 2007, the State Department had issued over 16 million passports in fiscal year 2007, up from 12.1 million in 2006. The State Department expects to issue 23 million passports next year and 30 million passports in 2010.

• See the State Department's website for more information on WHTI

State and Local Policy Beat in Brief

Driver's Licenses for the Unauthorized in New York. New York drivers will no longer need a valid social security number to obtain a driver's license following a policy change by the New York Department of Motor Vehicles. New York joins eight other states — Hawaii, Maine, Maryland, Michigan, New Mexico, Oregon, Utah, and Washington — in issuing driver's licenses regardless of immigration status.

• Read more about the New York Department of Motor Vehicles policy change here.