DHS To Rewrite Illegal-Immigration Rule

By Dan Wagner

Facing a legal challenge from an alliance of labor unions and business groups, the Bush administration and the U.S. Department of Homeland Security (DHS) will rewrite and reissue a rule intended to punish employers who hire illegal immigrants. DHS originally published its illegal-immigration rule last August, which would have required employers to fire a worker who cannot provide verifiable identity information within 90 days or face potential prosecution for “knowingly” hiring and employing an illegal immigrant.

The original rule, which also specified safe-harbor procedures for employers to follow after receiving a “no-match” letter from the Social Security Administration or DHS, was roundly criticized by various groups. A no-match letter essentially advises an employer that an employee’s identity does not match agency records and raises concern about whether the person is authorized to work. Ultimately, a legal challenge was filed by a coalition of groups, including the AFL-CIO and the United States Chamber of Commerce, claiming that the agency failed to follow proper procedure in developing and issuing the rule.

Judge Charles R. Breyer of the Federal District Court in San Francisco, CA, issued an indefinite delay to the rule in October, finding that the government did not follow proper procedure and failed to conduct an impact analysis of the rule’s effect on small business. Judge Breyer also concluded that the Social Security database proposed to be used to verify worker status is not effective and that its use could result in the improper dismissal of many workers who are American citizens or otherwise fully authorized to work in the United States.

As part of his holding, Judge Breyer also prohibited the Social Security Administration from sending out approximately 141,000 no-match letters covering more than eight million employees. The letters were intended to be sent with instructions from DHS about the new illegal-immigration rule.

In response to Judge Breyer’s ruling, the government has now apparently dropped its legal defense of the original rule and announced an intention to rewrite and reissue the rule by the end of March. In announcing the agency’s intention to rewrite the illegal-immigration rule, DHS noted that a small-business survey will be conducted and that the redevelopment of the rule will “fully address the court’s concerns.”

When the rule was first issued last August, it was met with mixed reaction in the cleaning industry. Many cleaning organizations praised it and expressed appreciation for the safe-harbor procedures that laid out precisely what an employer needs to do in response to a no-match letter to avoid prosecution. Others were concerned over the potential no-win situation faced by employers who try to do the right thing and comply with the rule. Specifically, employers were concerned over the possibility that complying with the rule and firing an employee could subject them to discrimination liability. In other words, employers were worried that firing an employee would result in them being found liable of discrimination, while not firing an employee would subject them to prosecution for knowingly hiring an unauthorized individual in violation of the federal Immigration and Nationality Act.

There is no indication of what the rule will look like when it is finally reissued by DHS and whether it will retain the requirement to fire an employee within 90 days if his or her identity cannot be verified. Please be assured that ISSA will keep members apprised of the latest developments in this arena and will certainly report on the rule when it is finalized. For more information, please contact me, Dan Wagner, ISSA director of facility service legislative affairs.

Dan Wagner is director of the Cleaning Industry Management Standard (CIMS) and director of facility service legislative affairs for ISSA. He can be reached at 800-225-4772 (North America) or 847-982-0800.

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