ISSA, a trade association for the cleaning industry, urged the U.S. Department of Homeland Security (DHS) to withdraw its proposed rule that would establish “safe-harbor” procedures for employers who receive a no-match letter from the Social Security Administration (SSA) or the U.S. Immigration and Customs Enforcement in formal comments submitted to the DHS on August 14.
The DHS’ proposed rule sets forth actions that employers can take in response to the receipt of a no-match letter that will substantially reduce the possibility that the DHS will claim an employer had constructive knowledge that it is employing an individual who is not authorized to work in the United States. Should an employer be found to have constructive knowledge regarding the employment of an illegal alien, the employer is subject to criminal penalties for violating the federal immigration laws.
In opposing the DHS proposal, ISSA argued that the proposed rule is simply the “wrong rule at the wrong time.” More specifically, consideration and adoption of the proposed rule before the conclusion of the congressional debate on immigration reform not only undermines the legislative process, it also will serve to confuse and burden employers unreasonably. As an aside, the U.S. House of Representatives and Senate have both passed immigration bills that would make significant changes to an employer’s responsibilities when verifying its workers’ authorization to work in the United States. Insiders predict Congress will complete its work on immigration reform in the coming months.
ISSA also pointed out that the proposed rule’s reliance on the SSA no-match letters as an immigration enforcement tool is inappropriate. The SSA no-match letter is not indicative of immigration status, and an employer’s receipt of such a letter by itself does not and should not constitute constructive knowledge of illegal immigration status.
Moreover, ISSA argued that the proposed rule creates an untenable situation for employers. On the one hand, employers that follow the safe-harbor provisions of the proposal risk criminal prosecution by the DHS if they do not fire an employee for whom the employer is unable to resolve the discrepancy referenced in the no-match letter, and if the employee’s identity and work authorization cannot be verified. On the other hand, should an employer fire such an employee, the employer runs the risk of being sued civilly for wrongful discharge. A regulation that places employers in such a precarious situation is simply bad public policy.
ISSA therefore urged the DHS to withdraw its rulemaking in its entirety and allow the legislative process to run its course as it relates to comprehensive immigration reform.
For the complete text of ISSA’s comments on the DHS proposed safe-harbor rule, send your complaint here, and place “Safe-Harbor Comments” in the subject line.