Federal judge puts hold on key immigration enforcement plan

Judge says until case is decided, employers cannot be held liable for failing to address “no-match” letters identifying discrepancies in workers’ records.

A federal judge on Wednesday blocked a Bush administration plan to crack down on illegal immigrants in the workplace by requiring employers to reconcile employee Social Security numbers that do not match official records or be held liable for hiring undocumented workers.

Judge Charles Breyer of the U.S. District Court for the Northern District of California issued the temporary injunction to prevent "irreparable harm" while the court considers a lawsuit against the plan filed in August by the American Civil Liberties Union and a consortium of labor unions and business groups.

Until the groups filed suit, the Social Security Administration had planned to notify nearly 140,000 employers last month that more than 8 million of their workers are using Social Security numbers that don't match their names.

While Social Security has been sending "no-match" letters notifying employers of such discrepancies for more than a decade, past mailings downplayed any link between mismatched numbers and illegal workers, even though it is widely understood that illegal immigrants often present false documentation when applying for jobs.

But in August, the Homeland Security Department published a rule titled "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter," which required employers to correct or verify the numbers within three months. If they could not be verified, employers would then have to fire the workers or be held liable for employing illegal immigrants.

Because the strategy constitutes a major policy change, Homeland Security is obligated to provide legal justification for the change and analyze the cost and impact it would have on small businesses, Breyer said. He also wrote that the policy could harm U.S. citizens and legal workers as well as illegal workers.

In the Oct. 10 ruling, Breyer noted, "The government's proposal to disseminate no-match letters affecting more than 8 million workers will, under the mandated time line, result in the termination of employment to lawfully employed workers. This is so because, as the government recognizes, the no-match letters are based on SSA records that include numerous errors…. If allowed to proceed, the mailing of no-match letters, accompanied by DHS' guidance letter, would result in irreparable harm to innocent workers and employees."

Homeland Security Secretary Michael Chertoff released a statement saying the agency was reviewing the judge's decision with the Justice Department to examine its options, including appeal.

"The Bush administration now faces a test," said Mark Kirkorian, executive director of the Center for Immigration Studies, a nonprofit organization that supports limited immigration. "If they don't appeal it will be clear their commitment to enforcement is very thin."

Not surprisingly, the plaintiffs hailed the ruling. In a statement, AFL-CIO President John Sweeney said, "This is a significant step towards overturning this unlawful rule, which would give employers an even stronger way to keep workers from freely forming unions."

According to SSA, more than 35,000 of the 138,447 letters to be mailed out this year were to go to California employers, followed by Texas (12,713 letters), Florida (7,378 letters), Illinois (6,455 letters) and New York (5,688).