Secretary Chertoff and the Administration made clear the significance of implementing the Social Security No-Match Regulation to its goal of fixing our broken immigration system. For those who are not familiar, DHS issued a Social Security No-Match Rule that would require employers to take steps to make employees resolve with DHS or the Social Security Administration (SSA) discrepancies identified in the social security information presented by the employee. Over the last few years, the SSA has issued practically useless notifications to employers advising employers that there were some discrepancies between an employee’s social security number and their biographic information. The main question from employers receiving such letters was “… and you want us to do what about this?” The notices did not direct employers to take any action, and frankly were a fine example of a bureaucratic SSA hot-potato game.

DHS jumped into this mix in an attempt to clarify what the requirements for employers are in the No-Match Rule that essentially requires employers to notify employees about the discrepancy and give the employees 90 days to resolve the issue with SSA or DHS. In the absence of resolving the issue, the employer would face the choice of either terminating the employee or risk being found to be knowingly employing unauthorized workers. To sweeten the pot, DHS stated in the rule that employers following its suggested procedures, to include terminating employees, would be in a “Safe Harbor” immunizing them from immigration sanctions and anti-discrimination violations. The Safe Harbor would serve as an inducement for employers, while the remainder of the rule served as a black jack to be used on non-complying employers. The rule was DHS’ play at compelling employers to take action against employees with suspect SSA records, the majority who are likely to be undocumented. Pretty straightforward?

Not so fast. As all national issues in immigration are prone to lawsuits, this would be no exception. An unusual group led by the ACLU, unions, and the U.S. Chamber of Commerce filed suit in San Francisco (coincidence?) and successfully obtained a preliminary injunction barring the rule from taking effect for the time being. A key concern cited by the District Court is that the information in the SSA database is not reliable. While the ACLU trumpeted its victory in preventing this rule, DHS showed its resolve for heightened employer accountability with a one-two counter. First, DHS notified the District Court that it would quickly revise the rule to address the issues cited by the judge while hoping to maintain the “meat” of the rule. Second, DHS indicated that DOJ will file an appeal of the District Court’s decision. The two-prong attack would permit possible implementation of the key parts of the rule before a final court decision would be issued in what could be another never-ending vision quest in courts. The homeland security blogs that lit up afterwards chastising the opposition only add levity while underscoring the importance DHS is placing on this rule.

Where will this go? Good question. There has been a court-sustained argument that the SSA database, which forms the basis for the issuance of letters and the possible termination of employees, is flawed. Apparently the DHS blogs were not convincing enough. The reality is that the SSA system was not meant to be part of a verification system and so lax data integrity processes in the past have led to faulty data. Perhaps DHS, and more importantly the SSA who has remained a silent partner (perhaps a hostage) on this scrimmage in immigration enforcement, can either enlighten all on how its databases are sufficiently reliable or (gasp!) actually fix its databases before placing the burden on employers. If this can be proven, then the concern of many authorized workers being wrongfully terminated would be nonexistent and the rule itself would make sense and should be implemented. However, just like the public resoundingly issued a DHS no-vote of confidence on immigration reform until it gets control of our borders, so too can the employee/employer community issue a no-vote of confidence on the federal government’s ability to maintain accurate records and/or resolve No-Match issues within 90 days.

Unfortunately, Chertoff has learned like his prior predecessors in DHS and immigration that our nation’s woeful record of immigration enforcement and accomplishments over the last 20 years – particularly in record keeping and technology – really do not leave much receptivity to DHS stating “trust us, it will work.” If they cannot fix the border, what’s to believe the No-Match system can be fixed.

On the other hand, DHS is correct in pushing this policy requirement in order to try to eliminate the true magnet for illegal immigration – jobs. Getting control of our illegal immigration problem will require better worksite verification and oversight. While the No-Match letter will not prevent a terminated undocumented employee from going to another employer with their fraudulent SSA document, it will make the life of an undocumented worker more chaotic and demanding – perhaps causing them to re-visit their desire to stay in the U.S. While the historical record of government has been abysmal, immigration reform will require all of us to take some risk in order to achieve workable comprehensive immigration reform that actually works.

For the meantime, as the issue winds its way through our courts, the marketing campaigns are off and running to win the hearts of the public in the No-Match Zone.