Judge Rules against DHS in Social Security "No-Match" Case
By Aaron Matteo Terrazas and Claire Bergeron
Migration Policy Institute
October 15, 2007
The Department of Homeland Security (DHS) may not carry out a controversial
immigration enforcement policy announced in August, according to Judge Charles
R. Breyer of the US District Court for the Northern District of California.
Judge Breyer issued a preliminary injunction last week in the case AFL-CIO
The decision prohibits DHS from sending out guidance letters with Social Security
Administration (SSA) “no-match” letters. These guidance letters,
part of a DHS rule entitled “Safe-Harbor Procedures for Employers Who
Receive a No Match Letter,” would have instructed employers how to respond
to a “no-match” letter to be in compliance with US immigration
SSA expects to mail at least 140,000 “no-match” letters in 2007.
DHS Secretary Michael Chertoff, who was disappointed with the decision,
said the government is considering all of its legal options. The DHS rule was
critical to the Bush administration’s effort to step up interior enforcement
since Congress rejected broader immigration reform in June.
SSA sends “no-match” letters
to employers who submit more than 10 employee W-2 forms with information (names
and social security numbers) that cannot be matched with SSA’s social
security database, and whose mismatched W2 forms constitute more than 0.5 percent
of all W2 forms the employer submits.
In his ruling, Judge Breyer agreed with the plaintiff’s argument that
the DHS Safe-Harbor rule would cause thousands of employers to bear significant
administrative expenses, and that the rule would likely lead to the termination
of many legal employees, because of errors within the SSA database.
In addition, Judge Breyer said plaintiffs raised serious questions as to whether
DHS has the authority to determine whether or not an employer can be sued for
violating the 1986 Immigration Reform and Control Act’s (IRCA) antidiscrimination
The guidance letters would have informed employers that, upon receipt of the
“no-match” letter, they should attempt to correct the problem,
or reverify the work authorization of each employee listed in the letter.
If a “no-match” problem were not corrected within 90 days, according
to the guidance letter, and an employer could not verify that his or her employee
had legal authorization to work in the United States, the employer should terminate
The DHS guidance letters state that if employers do not follow this DHS-outlined
Safe-Harbor procedure, they could be found to have had “constructive
knowledge” of hiring an unauthorized worker, and therefore be subject
to prosecution. The rule also states that employers who follow DHS’s
Safe-Harbor procedure” would not be liable for discrimination charges
under IRCA’s antidiscrimination provision.
The plaintiffs in the case included an unusual alliance of interests, including
the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO)
and the US Chamber of Commerce. These groups feared the DHS rule would prompt
layoffs in low-wage industries, affecting both unauthorized and legal workers.
SSA has sent out employer “no-match” letters since 1994. Sometimes,
a “no-match” occurs because of a clerical or translation error
on a W2 form, or because a worker has changed his or her name after a marriage
A “no-match” is also triggered when an unauthorized worker gives
an employer false information on a W2 form and the employer sends this W2 to
In 2006, the 10 states that received the greatest number of “no-match” letters
were the same 10 states that had the greatest estimated number of unauthorized
Iraqi Refugee Cap Raised to 12,000 for 2008
- Read the DHS Safe-Harbor Procedures rule here.
- Read the MPI backgrounder about “no-match” letters and AFL-CIO
v. Chertoff here.
The White House will raise the admissions cap for Iraqi refugees to 12,000,
or approximately 15 percent of total refugee admissions for 2008. Between 2003
and 2006, 764 Iraqi refugees, approximately 0.4 percent of total refugee admissions
over the same period, were resettled in the United States.
The government resettled 1,608 Iraqi refugees during fiscal year (FY) 2007,
which ended September 30. The United Nations High Commissioner for Refugees
(UNHCR) has referred 11,868 refugees for resettlement as of October 12.
Of the 4,300 Iraqi refugees the State Department’s Bureau of Refugees and
Migration has interviewed in 2007, 735 have been rejected for resettlement
due to a criminal background or inconsistencies in their stories.
In February, the White House promised to admit 7,000 Iraqi refugees in FY
2007, later revising that goal down to 2,000.
Various nongovernmental organizations, as well as some members of Congress,
have criticized the Bush administration’s slow response to the Iraqi
refugee crisis, including the resettlement of those Iraqis who became targets
for helping the United States.
UNHCR estimates that nearly 3 million Iraqis have been displaced since the
United States invaded Iraq in March 2003.
Policy Beat in Brief
- Read more about the resettlement of Iraqi refugees in the United States
in the February 2007 Policy Beat.
- Read the September 2007 Source article on Iraqi refugees here.
National Guard on Southwest Border. Congress approved
$794 million to extend the presence of National Guard troops on the Southwest
border through September 30, 2008. Senator Jeff Sessions (R-AL) sponsored the
amendment to the Defense Department Appropriations Act for 2008. Since arriving
on the Southwest border in June 2006, National Guard troops have provided administrative
and logistical support, thereby freeing up agents for patrols and for the training
of new recruits. As of June 2007, nearly 5,800 National Guard troops were posted
on the border, a number that declined to approximately 3,500 in August as the
National Guard prepared to end the mission. The Border Patrol is working to
add 6,000 new agents by the end of 2008.
2008 Refugee Admissions. The White
House raised the refugee admissions cap for 2008 to 80,000, up 14 percent from
2007. The cap for the Near East and South Asia, which includes Iraq, increased
over 400 percent from 5,500 to 28,000. The admissions cap for East Asia, which
includes Myanmar, also rose dramatically, from 11,000 to 20,000 (80 percent).
By contrast, the admissions caps declined for Africa (down 27 percent to 16,000),
Europe and Central Asia (down 54 percent to 3,000), and Latin America and the
Caribbean (down 40 percent to 3,000). The number of permissible discretionary
admissions also declined 50 percent to 10,000.
- Read more about the Secure Border Initiative here.
- Read more about the deployment of the National Guard on the Southwest border
in the June 2006 Policy Beat.
- Read more about the withdrawal of the National Guard from the Southwest
border in the August 2007 Policy Beat.
Naturalization Exam. US Citizenship and Immigration
Services (USCIS) plans to implement a revised citizenship exam beginning with
individuals who apply for naturalization after October 1, 2008. According to
USCIS, the revised exam will reduce redundancy and better emphasize the concepts
of democracy, US history, and US citizenship. The exam will include 10 civics
questions, as well as reading, writing, and speaking portions. USCIS has posted
the new test’s 100 potential civics questions, as well as study guides
for the reading, writing, and speaking portions of the test, on its website.
The Immigration and Naturalization Service — the predecessor agency to USCIS — began the test redesign
- Read the Spotlight on Refugees and Asylees in the United States here.
Diversity Visa Program. The US State Department's
Diversity Visa Program is "particularly vulnerable" to fraudulent activity
according to a recent report from the Government Accountability Office (GAO).
Each year the congressionally mandated program conducts a lottery to give away
50,000 permanent resident visas to individuals from countries with low rates
of immigration to the United States. GAO found that many program applicants
commit identity or marriage fraud to convince US consular officials of their
eligibility for diversity visas. In addition, applicants may employ the services
of phony "visa agents" or "visa consultants," who often exploit applicants.
The report found that while there was no documented evidence that diversity-visa
immigrants pose a particular terrorist threat, the prevalence of identity fraud
has made many consular officers concerned that the program provides an "open
door" for terrorists.
- Read more about the redesigned naturalization exam here.
- Read more about the naturalization exam redesign process in the January
2005 Policy Beat.
Passport Processing Backlog. The
US State Department has eliminated a passport processing backlog that had frustrated
many US travelers over the past year. Passport demand began to climb in 2006
in advance of a federal rule called the Western Hemisphere Travel Initiative
(WHTI). Effective as of January 2007, WHTI requires air travelers to have valid
passports for travel to countries in the Caribbean, Mexico, and Canada. Previously,
a driver's license or birth certificate was sufficient. As of September 7,
2007, the State Department had issued over 16 million passports in fiscal year
2007, up from 12.1 million in 2006. The State Department expects to issue 23
million passports next year and 30 million passports in 2010.
- Read the GAO report here.
- Read more about the Diversity Visa Program in the November 2002 Policy Beat.
- Read the Department of State's information on the Diversity Visa Program here.
State and Local Policy Beat in Brief
- See the State Department's website for more information on WHTI.
Driver's Licenses for the Unauthorized in New York. New
York drivers will no longer need a valid social security number to obtain a
driver's license following a policy change by the New York Department of Motor
Vehicles. New York joins eight other states — Hawaii, Maine, Maryland, Michigan,
New Mexico, Oregon, Utah, and Washington — in issuing driver's licenses regardless
of immigration status.
- Read more about the New York Department of Motor Vehicles policy change here.
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