November 17, 2008
Illegal staff may bring arrest, fine
Letters would warn employers if IDs didn't match database
By Janell Ross
When Nashville immigration lawyer Linda Rose holds a seminar for business owners, there are usually questions about worksite immigration raids.
But at a seminar this month, much of Rose's audience wanted to talk about immigration enforcement that comes in the mail, not through the door: the no-match letter.
After nearly 2½ years of litigation delays, the Department of Homeland Security announced in late October plans to revive an effort to put employers with suspected illegal workers on notice. If they don't act, they'll be penalized or even prosecuted.
No-match letters actually come from the U.S. Social Security Administration. The letters advise employers information submitted about workers does not correspond with information in the Social Security Administration's database. Under the new effort, the employer and employee would have about 90 days to address the problem.
Homeland Security announced in October the letters will include a list of actions employers must take. If an employer fails to follow the steps or fire the worker, the employer would be engaged in "knowingly employing" someone the agency considers an illegal worker.
Some first-time offenses — those that are a matter of a clerical error and those involving illegal workers but no evidence of a pattern — are considered civil violations. They carry fines that range from $110 to $3,200 per worker, Rose said.
But in cases where the government believes that there is a pervasive pattern of hiring illegal workers, criminal charges can be filed.
Penalties can range as high as six months in jail and or $3,000 fines.
A suit filed by the AFL-CIO in 2006 and joined by the U.S. Chamber of Commerce as well as the American Civil Liberties Union and other groups initially stopped Homeland Security from moving forward with its plans.
The groups said the measure would disrupt business operations, force employers to provide new training and, because of the 18 million errors the Social Security Administration estimates exist in its database, mistakes were likely.
Lawsuit pending on plan
The errors haven't been corrected, but Homeland Security wants to move forward. Officials will find out whether they can after a Friday federal court hearing on the lawsuit.
The Social Security Administration hasn't decided "due to the pending litigation whether it will be mailing the letters (to employers) or not," said Patti Patterson, an agency spokesperson based in Atlanta.
Some suspect the burden of proving a legal right to work in the U.S. will fall to employees.
"They are the ones who will be at risk of not being able to work when they are legally and fully able to do so," said Stephen Fotopulos, executive director of the Tennessee Immigrant and Refugee Rights Coalition. "I think there are a lot of people who want an employment system that works. But it will never work better than the data."
Tom Negri, the general manager of the Loews Vanderbilt Hotel, said new workers there are run though an existing Department of Homeland Security database and must pass a background check and drug test. He said he doubts the plans would affect him, but they will other companies.
"They have to spend the money to have the kinks worked out," Negri said. "If they don't … well, with unemployment as high as it is, do you want it to affect millions of people, employable U.S. workers? I would think not at this period in time."