Original URL: http://www.theregister.co.uk/2007/10/12/us_social_security_numbers_ruling/

Ruling allows US tech firms to dodge an immigration bullet

Feds still have plenty of ammo, though

By Kevin Fayle

Posted in Government, 12th October 2007 20:23 GMT

Technology firms in the US just won a last-minute reprieve from a fusillade of new, and potentially devastating, immigration rules.

But the government is almost certain to reload and try again in a higher court.

Judge Charles Breyer of the Northern District of California granted a preliminary injunction on Wednesday that put a halt to a new tag-team effort by the Department of Homeland Security and the Social Security Administration to correct errors in the Social Security records hunt down workers possibly in the country illegally.

This preliminary injunction will stop the federal agencies' plans for the time being, but the US government has the option to appeal the order to the Court of Appeals for Ninth Circuit.

Then, even if the Ninth Circuit upholds the injunction, the parties must go to trial over the merits of the case to determine if the preliminary injunction should become permanent.

Without wading too far into the Kafkaesque legal swamp surrounding both Social Security and immigration issues in the US, here is a rundown of what the DHS and SSA did and/or proposed to do:

No Match

The DHS recently began to promulgate new rules and procedures surrounding so-called "No Match" letters issued by the SSA. The SSA normally sends these letters out to employers after the agency notices a discrepancy between the Social Security records that an employer's records for an employee and the agency's own information.

These discrepancies cause the SSA to suspend posting the mismatched worker's earnings to their retirement credit until the confusion gets sorted out. The letters ordinarily act as simple requests for more data so that the SSA can sort out the problem and resume collecting the employee's earnings if everything is on the up and up.

A few months ago, however, the DHS tried to change the rules of the game by modifying a regulation related to criminal violations for knowingly employing illegal aliens. The new regulation added the No Match letters to a list of items that provide constructive knowledge of an employee's unauthorized status.

Thus, if an employer received one of these No Match letters and did nothing, they would be criminally liable if the worker in question turned out to be illegal.

The DHS did give employers a way out: after receipt of a No Match letter the employer must check internal records and attempt to discover the source of the mismatch within 30 days. If the employer's records are correct, the employee then has 90 days to clear up the confusion with the SSA. Sounds simple, right?

There is a catch. The SSA planned to send out 140,000 such letters, covering roughly eight million employees.

Them's a lot of records to check in 30 days.

That's exactly what the plaintiffs - a collection of labor unions and industry groups - argued in their suit against the feds. The new rules would create exorbitant new expenses, they alleged, and they would result in the termination of authorized workers, both citizens and immigrants alike.

During arguments in the case, The government recognized that its records are rife with errors. (The hell you say!) Under the new rules, an employer would not be able to accept a document containing a disputed Social Security number. So even if the fault lay with the SSA, the employee couldn't maintain his employment based on the disputed, but accurate, number.

In the absence of any other kind of proof, the employer would have to let the employee go rather than face criminal charges for "knowingly" employing an "illegal" worker.

Judge Breyer agreed with the plaintiffs' arguments, finding that they raised sufficient questions about whether the DHS had followed legal requirements in creating the new rules.

Since the plaintiffs had also demonstrated that the current rules would result in irreparable harm to innocent employers and workers, the judge held that a preliminary injunction was appropriate.

Even though the group of plaintiffs consists mostly of labor unions (such as the AFL-CIO), restaurant industry groups and agricultural interests, the technology industry stands to benefit greatly from the decision as well.

It's common knowledge that the US tech sector relies heavily on talent imported from abroad. And with the current sorry state of enrollment of US kids in computer science and engineering programs, that reliance is set to expand into the future.

Safe Harbor from the letter storm

Given that much of the tech sector depends on immigrant labor, the new DHS rules could seriously impact companies' bottom lines if the injunction doesn't hold.

Even assuming that all of the immigrant tech workers are in the country legally, the number of potential errors in the SSA records could still set off a flood of No Match letters to tech companies, which would then have to put HR procedures in place for dealing with the letters to take advantage of the safe harbor in the new regulations.

Such processes rarely come cheap, and even a perfect process can't protect workers who are the victims of SSA screw-ups. The last thing companies want to do is fire a lead project engineer just because an SSA employee entered that employee's social security number into the agency's system improperly, but that might end up being a common result if the DHS rules go into effect.

For the moment, however, tech companies appear to be off the hook.

But for the government, tomorrow is a new day, a new court - and possibly a new result.®