Imagine two companies: first, a construction company that has received repeated notices for several years from the Social Security Administration of hundreds of irregularities in the social security numbers used for employment purposes at the company. These same social security numbers were used as a basis for work eligibility on I-9s. This company chooses to ignore the no-match letters and as a result, continues to employ significant numbers of unauthorized workers.
Second: another construction company that goes above and beyond the norm and signs up for the voluntary E-Verify program to further ensure that it is hiring only legally authorized workers. Although the company undergoes immigration compliance training, they inadvertently make some mistakes in the E-Verify implementation process. When they discover the mistakes, they immediately correct them.
In tough economic times, the Department of Homeland Security (DHS) should focus on ensuring a level playing field for honest businesses, and regulating unscrupulous firms who use illegal workers to cut costs and gain a competitive advantage. Clearly, the federal government should focus its enforcement efforts on the first company and not the second. It would be consistent with general beliefs of fairness and justice.
Unfortunately, if last week’s federal register announcement of “dropping the no-match rule” is any indication, the DHS is squarely aiming its efforts on employers who are trying to do the right thing. By ignoring a critical tool that can help agents target employers and instead augmenting the monitoring and compliance of E-Verify users, as announced in May, the administration has turned our sense of fairness and justice upside down.
Of course, DHS’ intent to formally revoke the no-match rule is not a big surprise. Earlier this summer, the administration slipped this announcement in with its very positive announcement that it is mandating E-Verify for federal contractors. But while DHS claims that they are dropping the no-match rule as part of their push to do “smarter” worksite enforcement, the evidence suggests that they are also leaving some critical tools for targeting the most egregious employers back in the toolbox. Not only are they discarding the safe harbor rule, but DHS has declared that they will no longer be looking at no-match letters as part of enforcement actions. DHS said as much in Wednesday’s announcement declaring, “DHS has determined that focusing on the management practices of employers would be more efficacious than focusing on a single element of evidence within the totality of the circumstances.”
This is a mistake. ICE agents and federal prosecutors have routinely used no-match letters as part of an overall strategy to target egregious employers. How an employer handles no-match letters, or rather how they don’t, can often provide significant insight into an employer’s overall compliance strategy, and useful evidence to support a criminal indictment.
This piece was originially published by Forbes.com.
