Homeland Security to revise Social Security number enforcement plan

The Homeland Security Department will revise a rule requiring employers to reconcile employee Social Security numbers that don't match existing records in government databases, according to a motion filed by the Justice Department in federal court last week.

The rule, titled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, was published in August and would have given employers three months to correct or verify Social Security numbers that don't match employee names after receiving a letter from the Social Security Administration notifying them of a discrepancy.

If the numbers could not be reconciled, employers would have to fire the workers or be held liable for employing illegal immigrants.

The American Civil Liberties Union, the U.S. Chamber of Commerce and a consortium of labor unions and immigrant rights groups sued the agency in September, arguing that government databases are so flawed that the new rule would harm U.S. citizens and discriminate against foreign-born workers.

Last month, Judge Charles Breyer of the U.S. District Court for the Northern District of California issued a temporary injunction barring the government from mailing the letters to prevent "irreparable harm" while the court considers the case.

Social Security has been mailing no-match letters for many years, but this was the first mailing that linked mismatched numbers to potential illegal workers and included guidance from Homeland Security explaining the new rule.

One critical issue centers around the accuracy of existing Social Security Administration records. SSA Inspector General Patrick O'Carroll reported to Congress last December that agency records were "generally accurate," but he expressed concern about the records of foreign-born citizens and non-U.S. citizens.

When Social Security assigns a number to an individual, the agency creates a master record in its Numident file, which contains relevant information about the number-holder, including eligibility to work. The IG reviewed a total of 2,430 randomly selected records, divided evenly into three categories: native-born U.S. citizens; foreign-born U.S. citizens and non-U.S. citizens.

"Based on DHS information, we determined that 62 (7.7 percent) of the 810 foreign-born U.S. citizen Numident records we reviewed were misclassified -- and the number holders were not actually U.S. citizens… Additionally, we noted that 57 (7.0 percent) of the 810 non-U.S. citizen Numident records we reviewed were currently misclassified because the individuals had become U.S. citizens after obtaining their SSN but had not updated their records with [the agency]," O'Carroll wrote.

In asking for a stay, the Justice Department did not concede any problems with the original rule, but said the government would address issues raised by the court when Breyer issued the injunction. Specifically, the motion said Homeland Security would conduct an analysis of the economic impact of the rule and its effect on small businesses.

"A stay will prevent the waste of judicial resources in litigating over a rule that is in the process of being revised," the motion said.

No matter how Homeland Security changes the rule, opponents aren't likely to be appeased.

"No matter how DHS alters its rule, any use of a Social Security mismatch to assume immigration status will trap workers in a bureaucratic nightmare and punish them unfairly," said Marielena Hincapié, staff attorney and director of programs at the National Immigration Law Center, a party to the lawsuit. "Employers should recognize that the government's decision not to defend the illegal DHS rule means that businesses must not apply it or they would risk legal challenges by employees who would suffer discrimination and be adversely affected."