The Social Security Administration No-Match Program: Inefficient, Ineffective, And Costly

by Marielena Hincapie, Tyler Moran, and Michele Waslin of the Immigration Policy Center

The failure of congress to pass comprehensive immigration reform, and the Bush administration’s subsequent stepping up of immigration enforcement, have resulted in deficient policies that do not address the issue of unauthorized immigration, but do cause extreme hardship to u.S. workers, businesses, communities, and the economy. Soon after the 2007 Bush administrationbacked immigration-reform bill failed in the u.S. Senate, the administration redirected its efforts with respect to unauthorized immigration into more vigorous enforcement along the border and in the workplace. eager to demonstrate they could be tough, the administration dusted off a proposed regulation, which had first been made public about a year earlier, to use Social Security administration (SSa) “no-match” letters as a tool for identifying unauthorized workers. Final regulations were issued in august 2007, but were subsequently enjoined by a Federal Judge who found that they would “result in irreparable harm to innocent workers and employers.” SSa no-match letters are sent to workers and employers in an attempt to correct discrepancies in SSa’s records that prevent workers from receiving credit for their earnings. They were not designed to be an immigrationenforcement tool, and historically they have never been used for immigration-enforcement purposes. in fact, for years, SSa has been clear that no-match letters are not a proxy for immigration status, and that there are many legitimate reasons why a worker or employer might receive a no-match letter.

• Cause the firing of employment-authorized workers and u.S. citizens at a time when our economy is
highly fragile;
• Impose additional costs on employers;

• Result in increased discrimination and abuses against
u.S. workers; and
• Overwhelm SSa by diverting resources away from its primary mission of administering benefits.

• The Decentralized Correspondence, or “DECOR,”
letter sent to workers. SSA sends no-match letters directly to workers at their homes based on the address reported on the W-2 to inform them of discrepancies in agency records. SSA sent about 9 million such letters in 2007 for TY 2006.¹⁶
• The Decentralized Correspondence, or “DECOR,”
letter sent to employers. if SSA does not have a >worker’s home address or if the address on the W-2 is missing, incomplete, or incorrect, SSA sends the no-match letter to the worker’s employer. The letter informs the employer that its W-2 for a specific individual does not match SSA records. in 2007, 1.7 >million such letters were sent to employers regarding wages paid in TY 2006.¹⁷
• The Educational Correspondence, or “EDCOR,”
letter sent to employers. SSA sends edcor letters to employers if the W-2s they filed resulted in a no-match >for more than ten workers and if more than 0.5 percent >of the total number of names and SSns they reported on W-2 forms for the previous tax year resulted in a >no-match. edcor letters provide the employer with a list of SSNs (but not names) that do not match SSa records, and for large employers it can include up to 500 SSNs. approximately 138,000 such letters were sent in 2006 for Ty 2005, ¹⁸ relating to over 9 million workers with no-matches. ¹⁹

• Within 30 days of receiving the no-match letter, the
employer should check its own records and, if the employer’s records are accurate, the employer should “promptly” ask the employee to confirm that the information the employer has in its records is correct. If the employee provides corrected information, the employer should correct its records, inform the relevant agency, and verify that the corrected name and SSN match the agency’s records. If the employer’s own records are correct, the employer should ask the employee to resolve the discrepancy with the relevant agency within 90 days of the date the employer received the no-match letter.
• If the discrepancy is not resolved within 90 days of
receipt of the no-match letter, the employer should reverify the employee’s employment eligibility and identity by completing a new Form I-9 for the employee. The employer and employee have 3 additional days to complete this form (i.e., it must be completed within 93 days of receipt of the no-match letter). To establish his or her employment eligibility or identity or both, the employee may not use a document containing the SSN or “Alien Number” that is the subject of the nomatch letter (nor may the worker use a receipt showing that the employee has applied for a replacement of such document). in addition, all documents used to prove identity, or both identity and employment eligibility, must contain a photograph.
• If the no-match is not resolved and the employer can
not verify the employment eligibility and identity of the employee (through completion of a new I-9 form), the employer must choose between terminating the employee or facing the risk that DHS may find that the employer had constructive knowledge that the employee was unauthorized to work, and is therefore in violation of immigration laws.

While the proposed rule attempts to clarify some of the major concerns expressed by the federal district court in its decision granting the preliminary injunction, its provisions still would result in harm to workers and employers alike. The proposed rule will likely trigger firings of low-wage workers across the U.S., many of which will be wrongful. Past experience indicates that, rather than navigating a complex series of steps and timetables to a “safe-harbor,” panicked and confused employers will simply fire workers who are the subjects of no-match letters; or they will require only immigrant workers—or those they perceive to be immigrants based on the latter’s skin color, surname, etc. To take certain steps to correct their information, out of concern that their receipt of a no-match letter will lead to an audit or prosecution by immigration authorities.

It is important to note that, even if the proposed rule is implemented, it does not necessarily follow that employers who receive no-match letters will be audited or otherwise targeted by DHS for immigration-related enforcement. currently, DhS knows that an employer has received a no-match letter only if, when conducting an investigation, it requests this information from the employer. at that point, DhS may use the employer’s receipt of the no-match letter as one factor in its prosecution of the employer. Since DHS already has authority to do this and has used it in the past, it is unclear why the proposed rule is even necessary, except to send a political message that the agency is being tough on employers and to intimidate employers into interpreting the no-match letter as an immigration enforcement tool.

THE INTENDED CONSEQUENCES OF EMPLOYER NO-MATCH LETTERS

The purpose of the no-match letter is to clean up the ESF and ensure that workers receive credit for their earnings. not only have the letters proven to be an ineffective means of achieving this goal, but they also have resulted in many unintended negative consequences for workers, employers, and SSA itself.

Impact of Employer No-Match Letters on Workers

Employer no-match letters have already had a devastating effect on workers generally, regardless of their employment eligibility status. despite the edcor letter’s strong warning to employers not to “take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual, just because his or her Social Security number appears on the list [included in the letter],”³⁸ some unscrupulous employers still take such actions. in 2003, the year after SSa sent out a dramatically increased number of employer no-match letters (approximately 950,000), the cued concluded that employers’ receipt of the no-match letters had encouraged them to fire workers whose SSns were listed in the letters, and that the program had encouraged some employers to take advantage of workers, to the workers’ detriment. ³⁹

In addition to simply firing workers who are the subjects of no-match letters, unscrupulous employers also use the letters to intimidate workers, retaliate against those who exercise their labor rights, interfere with union campaigns, and terminate workers with more seniority, as a means of reducing the employers’ labor costs by paying lower wages and providing fewer benefits.

Workers who are subjects of a no-match letter are assumed to be undocumented and are fired based solely on their SSN being listed in the letter. Some employers who receive a no-match letter mistakenly believe that it is a notice of immigration violations, and they immediately fire workers whose SSNs are listed in the letter. many u.S. citizens and lawful immigrants have lost their jobs as a result of such an action. according to the cued national survey, despite the letters’ strong warnings to employers, approximately 53.6 percent of employers responding to no-match letters terminated the workers whose SSNs were listed in them, often without giving them any opportunity to correct the no-match discrepancies or any explanation to them of the no-match process.⁴⁰ other times, employers give workers the opportunity to correct their Social Security records, but require them to do so within a time frame more restricted, even, than that which the dhS “safe-harbor” rule proposes. under current law, workers faced with such an action have very little recourse unless they file legal claims alleging that the employer discriminated against them or engaged in other unlawful action, or unless they take collective action to put public pressure on the employer.

Workers who are subjects of a no-match letter will be fired when they can’t correct their records in a timely manner. As noted above, some employers immediately fire workers whose SSNs are listed in the letter or give workers the opportunity to correct their Social Security records, but require them to do so within a restricted time frame. other times, workers are simply not able to correct their records in a timely manner. The 2008 supplemental proposed rule includes an initial regulatory Flexibility Act analysis conducted by an outside contractor, econometrica, inc.⁴¹ its analysis acknowledges that workers may not be able to procure documents verifying their identity within the timeframe prescribed in the supplemental proposed rule, which would result in the termination of those workers. Based on DHS’s own conservative assumptions, the analysis predicts that employers may be compelled to terminate over 70,000 U.S. citizens and employment-authorized immigrants in order to comply with the proposed rule’s safe-harbor provisions. ⁴² Richard B. Belzer, Ph.D., an economist who is an expert in federal agency regulatory policies and practices, estimates that the total number of authorized workers who will be fired because of their inability to resolve the no-match could be as high as 165,000.⁴³ These estimates, however, only take into account the number of workers that will be fired in response to the edcor no-match letter, which is sent to employers with more than 10 workers with no-matches, and where the total number of no-matches represents more than .5 percent of the employer’s total Forms W-2 in the report. The estimates do not reflect the number of workers that may be fired in response to the decor no-match letter, which is sent to employers about an individual worker. in 2007, 1.7 million such letters were sent to employers regarding wages paid in Tax Year 2006.

No-match letters are used to undermine labor campaigns. Unscrupulous employers use the no-match letter to stymie organizing campaigns by ignoring the letters when they first receive them, then later using them as a pretext to fire workers who participate in efforts to improve working conditions and wages. The supplemental proposed rule would only exacerbate this problem.

Example: After not taking any action with regard to no match letters it had received in the past, a national uniform and laundry services company decided to act on the letters in 2006, and fired over 400 workers. The company claims that it was implementing the 2006 DHS proposed rule; however, the union trying to organize the company’s workforce asserts that the company retaliated against the fired workers for participating in union organizing.

No-match letters are used to retaliate against workers who assert their labor rights. Unscrupulous employers also use no-match letters to retaliate against workers who have been injured on the job or complain of unpaid wages or other labor violations. many times, these employers may have knowingly hired unauthorized immigrants in order to save money on wages and benefits. it is not until the workers come forward with a labor complaint that the employer uses the no-match letter to intimidate those who are unauthorized. This, in turn, affects other workers’ ability to exercise their labor rights, and all workers suffer as a result.⁴⁴

Example: In April 2007, 13 housekeepers were fired from a hotel in Northern California in retaliation for filing a complaint against their employer for unpaid wages. The employer had refused to comply with a living wage ordinance, and the workers began to organize to pressure company management, also speaking out to the media and the local city council. in response, hotel management told the workers that they were the subjects of a no-match letter and that if the workers did not correct their Social Security information, they would be terminated. Many of the workers had been employees of the hotel for years, and the hotel had never before required them to correct information based on their SSNs having been listed in previous no-match letters. in fact, the employer had received the most recent no-match letter in May 2006, but did not initiate any action until September 2006, after the employees started organizing.

No-match letters are used as an excuse to terminate higher-paid, senior employees. Some employers also use the no-match letter as a pretext for firing workers who have more seniority—those who earn higher wages and have more generous benefits packages. The employer then replaces them with lower-skilled and lower-paid workers.

Example: In November 2007, 11 out of 13 workers in a nevada warehouse were told by their employer that there was a problem with their SSNs and that they would be fired if they did not fix their records. The employer refused, however, to show the workers a copy of the no-match letter in which their SSns were listed. of the 13 workers at the warehouse, the 11 workers who were informed about the no-match letter were those with the highest seniority and salaries. The other two workers had been at the company for one year. it was not until an attorney intervened that the more senior workers were allowed to keep their jobs. They were told, however, that the company would revisit their case in April 2008.

IMPACT OF NO-MATCH LETTER ON EMPLOYERS

In addition to creating problems for authorized workers, no-match letters have caused confusion and fear among employers that will only be exacerbated by the 2008 supplemental proposed rule. if the rule is implemented, employers will be handed a set of new, heavy responsibilities. Although DHS claims it is not imposing any new requirements on employers, companies that do not follow the “safe harbor” procedures set forth in the rule risk being sanctioned if they do not fire workers with unresolved no-matches or they will have to require that workers rectify no-matches. given that some workers whose SSNs are listed in no-match letters will likely be work-authorized, employers that fire employees who are unable to resolve no-matches may face the additional at risk of being charged with unlawful discrimination, ⁴⁵ or wrongful termination.46

The costs imposed on the private sector by the no-match letter program and DHS’s proposed rule could also run into the hundreds of millions of dollars per year when the resources needed to rectify no-matches and the lost productivity by companies attempting to comply with the rule are taken into account. upon receiving a no-match letter, employers would have to examine the records of each worker whose SSN is listed in the letter (sometimes hundreds of SSNs are listed); compare SSNs from I-9s, W-4s, and payroll records to the SSNs listed in the no-match letter, and find any errors; work with SSA to correct the errors; work with employees to rectify discrepancies between their documents and the employers’ files; and wait while employees deal with SSA, DHS, or other government agencies to resolve no-matches. To complete these steps, many companies would have to consult with attorneys and require additional services from contracted payroll services. employers would bear additional costs as they seek to replace workers lost due to unresolvable no-matches. Monetary costs could climb higher if wrongfully terminated workers initiated litigation against their former employers. using DHS numbers and assumptions in its initial regulatory Flexibility act analysis, the regulations’ costs to employers would exceed $100 million annually. ⁴⁷ however, according to the analysis of economist Richard Belzer, the new rule would cost business between $1 billion and $1.6 billion per year. ⁴⁸

Being required to rectify all no-matches would have a particularly devastating impact on small businesses, many of which may not have dedicated human resources staff to deal with no-match letters. many small businesses operate out of nonconventional worksites where there is no way to access computers or employment files. Businesses that operate on a seasonal basis would face additional challenges, especially when the seasons are very short or when no-match letters arrive during the off-season. Small businesses are also more vulnerable to worker disruptions or shortages, and shocks to their workforces could jeopardize their ability to bid for future contracts.⁴⁹

U.S. employers are well aware that an estimated 12 million undocumented immigrants reside in the U.S. and that approximately 5 percent of the U.S. workforce is unauthorized. The new supplemental proposed no-match rule will not stop unauthorized employment, but it will exacerbate the unfair competitive advantage that unscrupulous employers have over those employers that seek to comply with the law. law-abiding businesses are at a disadvantage when some of their competitors will simply move into the cash economy to avoid regulation or begin misclassifying their employees as independent contractors as a way to prevent or avoid immigration enforcement that is tied to employers’ record-keeping.⁵⁰

IMPACT ON THE SOCIAL SECURITY ADMINISTRATION

SSA is already overburdened by its primary mission of administering critical benefits to the public, such as Supplemental Security income disability benefits and retirement payments. The SSa inspector general testified on February 28, 2008, that as of January 2008 there are 751,767 disability cases waiting for a hearing decision, which translates into average waiting times of 499 days.⁵¹ additionally, in 2008, the first of 78 million baby boomers are becoming eligible for Social Security retirement benefits, and the number of retirees receiving Social Security benefits is expected to rise by approximately 13 million over the next 10 years.⁵²

While SSA’s responsibilities have increased over time, its financial resources have not increased commensurately. Since the beginning of FY 2006, SSA’s 1,267 field offices have lost over 1,700 claims representatives and over 520 service representatives.⁵³ Furthermore, it is anticipated that many SSA employees, particularly those hired when SSA began to administer the SSI program in 1974, will retire soon.

If implemented, the supplemental proposed rule would place new demands on the SSA that it may not be able to handle. To resolve a no-match, often it is necessary for the affected individual to visit the local field office. Though the no-match letter program is not new, the new urgency and threat of job loss created by the proposed rule would compel larger numbers of people with no-matches to visit SSA field offices to clear them up. Similar to the increased resource demands caused when SSA began to administer medicare Part D, the increased traffic due to the no-match regulations would potentially disrupt the offices’ normal business, require additional staff hours, and add to the already increasing backlogs for disability benefits and other services. To date, SSA has put no new appointment system or other mechanism in place to accommodate additional customers. Workers with no-matches who walk into their local field office can expect to wait in long lines along with everyone else applying for benefits or trying to resolve problems.

CONCLUSION

Given the high costs associated with employer no-match letters—their harmful impact on workers, the costs to employers, the negative impact on the economy, the costs to SSA and the relative ineffectiveness of the no-match letter program, policymakers would be right to question whether the program should even be continued, much less co-opted by DHS. if DHS’s proposal to use the letters as an immigration enforcement tool is implemented, the costs will soar even higher—and greatly outweigh any immigration enforcement benefit it could possibly achieve. The no-match letter program—whether or not it is used as an immigration enforcement tool—will not magically make unauthorized workers disappear. in many instances, its result will simply be to erase them from payroll records and withhold their contributions to the Social Security system. Without immigration reform that provides them a path to lawful status and full participation in our society, unauthorized workers will simply dive deeper into the unregulated cash economy, which in turn will result in substantial losses in state and federal tax revenues and give an unfair competitive advantage to unscrupulous employers who continue to recruit, hire, and exploit unauthorized workers. and if DHS’s proposed no-match “safe-harbor” rule is implemented, large numbers of employment-eligible u.S. citizens and immigrants will lose their jobs because of no-matches caused by errors in government databases, while employers—themselves at the mercy of those same databases and caught in a no-win situation—will face costly litigation brought by unjustly fired workers.

RECOMMENDATIONS

Rescind DHS’s Supplemental Proposed Rule.

DHS’s 2008 supplemental proposed rule, which formally proposes to use no-match letters as an immigration enforcement tool, is misguided. The highly charged and politicized nature of the current immigration debate, as well as the government’s stepped-up efforts to enforce immigration law at worksites, should not be allowed to dictate policies that are likely to have a devastating impact on large numbers of employment-authorized workers and american businesses. The no-match letter program should never be regarded as an immigration enforcement tool. it was not designed for immigration enforcement; historically, it has not been used for immigration enforcement (and, in fact, the government has repeatedly and explicitly warned employers against making assumptions regarding employees’ immigration status based on the letters); and the harmful impact of such a policy will reverberate well beyond the immigrant community. in a recession, it makes no sense to heap new responsibilities on employers and increase the likelihood that U.S. citizens and authorized noncitizens may be wrongly terminated from their employment.

Suspend the employer no-match letter program.

The employer no-match letter program does not effectively serve its purpose, which is to correct discrepancies in SSA’s records that prevent workers from receiving credit for their earnings. only 6 percent of reinstated earnings are based on information corrected as a result of employer no-match letters. other validation routines have already proven more effective at correcting no-match errors and removing items from the ESF. moreover, the harmful impact of the edcor and decor employer no-match letters greatly outweighs any benefits derived from them.

If the employer no-match letter program is not suspended and DHS’s “safe-harbor” rule takes effect, implement the following policy changes:

• Require the DHS’s office of the inspector general and
office for civil rights and civil liberties, in coordination with the U.S. department of Justice’s office of Special counsel for immigration-related unfair employment Practices (office of Special Counsel) and the U.S. department of labor, to study and report on >the following: (1) whether the safe-harbor rule has >been implemented in a manner that avoids improper >adverse actions against U.S.citizens and lawfully present noncitizens; (2) whether the no-match letter has been used to undermine workers’ rights; (3) whether >the regulation has been implemented in a discriminatory manner; (4) the effectiveness of all “back-end” methods used to clean-up the ESF; (5) what percentage >of items in the ESF have actually been reinstated as a result of employer no-match letters; (6)whether >certain modifications to DHS’s no-match rule would alleviate discriminatory or improper implementation by employers; and (7) whether the rule has achieved its purpose.
• Create a statutory provision enforced by the office of
Special counsel that provides redress for employees who are wrongly terminated or suffer other adverse action because their employer fails to follow the procedures set forth in the regulation. This statutory right should not be dependent upon proof of discriminatory intent, but rather must apply in all instances where an employer fails to follow the no-match rule’s requirements.
• Amend the current SSA “Social Security Statement,”
which is mailed to every worker in the u.S. on an annual >basis, to be more specific about the importance of updating any name changes due to marriage, divorce, >naturalization, or some other life change (such as survivors of domestic violence, transgender individuals, >etc.), and any errors with the person’s name or SSN. >The statement must also warn workers that their employer may receive a no-match letter and that they may face being fired by their employer if they fail to correct the information in their W-2.

Congress must pass immigration reform.

With approximately 12 million unauthorized immigrants in the U.S. and approximately 7 million of them in the workforce, people on all sides of the immigration debate agree that something must be done about unauthorized immigration to the U.S. For years congress has failed to pass thoughtful, comprehensive solutions to the nation’s immigration problems and, rather, has passed a series of “Band-aid” measures meant to appear tough and appease voters in the short term without effectively resolving any problem. in this latest case, attempting to enforce federal immigration laws in a piecemeal fashion by using an SSA program that is ill-equipped to accomplish the task is another mediocre solution that will not solve the problem it targets. in the absence of broader reforms, any attempt to deport the entire unauthorized labor force and deny employers their current workforce will only encourage the expansion within the overall economy of that portion that is cash-based, underground, unregulated, and untaxed and will prove harmful to U.S. workers.

Americans have been very clear that they want a tough, fair, practical solution to U.S. immigration problems, and only congress can make that solution possible. The U.S. needs a national immigration policy for the twenty-first century that addresses unauthorized immigration, meets the needs of our economy, respects the labor rights of all workers, and is consistent with american values. But until then, piecemeal, Band-aid, and borrowed policies are counterproductive. SSA no-match letters are no match for sound policy.

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End Notes

¹ See “remarks by homeland Security Secretary michael chertoff and commerce Secretary gutierrez at a Press conference on Border Security and administrative immigration reforms,” dept. of homeland Security, august 10, 2007 (http://www. dhs.gov/xnews/releases/pr_1186781502047.shtm).

² Order granting motion for Preliminary injunction dated october 10, 2007, Judge charles Breyer, American Federation of Labor and Congress of Industrial Organizations, et al. case no. c07-4472 crB, u.S. d.c. northern district.

³“Safe-harbor Procedures for employers Who receive a no-match letter: clarification; initial regulatory Flexibility analysis,” 73 Fr 15944–55 (march 26, 2008). The proposed rule purports to clarify a final rule dhS issued in august 2007 (see 72 Fr 45611–24 (august 15, 2007)). For more on the august 2007 rule and the lawsuit that it provoked, see note 33, below, and accompanying text.

⁴ 42 uSc § 405(c)(2)(a).

⁵ Michael J. Astrue, Commissioner, Social Security administration, Statement for the Record, submitted to the house committee on appropriations, Subcommittee on labor, health and human Services, education, and related agencies, march 2007 (http://www.socialsecurity.gov/budget/genst08.pdf ). ⁶ Patrick P. o’carroll, assistant inspector general for investigations, Social Security administration, Testimony Before the Subcommittee on Oversight of the House Committee on Ways and Means, march 10, 2004 (http://waysandmeans. house.gov/hearings.asp?formmode=view&id=1235).

⁷ it should be noted that the taxes on these wage items are still paid into the trust funds; and in 2003, $7.2 billion in payroll taxes were credited to the trust funds based on wage items in the eSF. See James B. lockhart iii, deputy commissioner of Social Security, Testimony before the House Committee on Ways and Means, Subcommittee on Social Security, Subcommittee on Oversight, Hearing on Strengthening Employer Wage Reporting, February 16, 2006 (http://www.ssa.gov/legislation/testimony_021606.html).

⁸ Steve Schaeffer, assistant inspector general for the office of audit, Social Security administration office of the inspector general, Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means, June 7, 2007 (http://waysandmeans.house.gov/hearings. asp?formmode=view&id=6094).

⁹ See office of the inspector general, Social Security administration, Congressional Response Report: Accuracy of the Social Security Administration’s Numident File (hereinafter Accuracy of the Numident File), a-08-06-26100, december 2006 (http://www.socialsecurity.gov/oig/ado- BePdF/audittxt/a-08-06-26100.htm).

¹⁰ ibid.

¹¹ Barbara d. Bovbjerg, director, education, Workforce, and income Security issues, Social Security Numbers: Coordinated Approach to SSN Data Could Help Reduce Unauthorized Work (hereinafter Coordinated Approach) (Washington, dc: government accountability office, February 16, 2006) (http://www.gao.gov/new.items/d06458t.pdf" ) (emphasis added).

¹² ibid.

¹³ For more information about front-end routines, see Social Security: Better Coordination Among Federal Agencies Could Reduce Unidentified Earnings Reports (Washington, dc: government accountability office, February 2005) (http://www.gao.gov/new.items/d05154.pdf ).

¹⁴ ibid.

¹⁵ For a summary of SSa’s back-end routines, see appendix c of of- fice of the inspector general, Social Security administration, Audit Report: Effectiveness of the Single Select Edit Routine (hereinafter Single Select Edit Routine), a-03-07-17065, September 2007 (http://www.ssa.gov/oig/ adoBePdF/a-03-07-17065.pdf ).

¹⁶ The first page of the 4-page decor employee letter can be viewed at https://www.secure.ssa.gov/apps10/poms/images/SSal/g-SSa-l3365-c1-1. pdf. (To view any of pages 2–4, in your Web browser’s address window replace the numeral “1” immediately before the suffix “.pdf ” with the number of the page you want to view, then press “Enter.”

¹⁷ The first page of the 3-page decor employer letter can be viewed at https:// www.secure.ssa.gov/apps10/poms/images/SSal/g-SSa-l4002-c1-1.pdf (hereinafter “decor employer letter”). (To view either page 2 or 3, in your Web browser’s address window replace the numeral “1” immediately before the suffix “.pdf” with the number of the page you want to view, then press “enter.”)

¹⁸ The first page of the 8-page edcor employer letter can be viewed at https:// secure.ssa.gov/apps10/poms/images/poms09/09009/g-nl_00901.051c-1.pdf (hereinafter “edcor letter”). (To view any of pages 2–8, in your Web browser’s address window replace the numeral “1” immediately before the suffix “.pdf” with the number of the page you want to view, then press “enter.”) note that no edcor letters were sent in 2007 due to the lawsuit filed by the aFl-cio, the aclu immigrant rights Project, the national immigration law center, and the alameda and San Francisco labor councils on august 29, 2007, which resulted in the federal court enjoining the dhS and SSa from implementing the final rule issued on august 15, 2007. For more information about the lawsuit, American Federation of Labor and Congress of Industrial Organizations, et al. v. Chertoff, et al., case no. c07-04472 crB, u.S.d.c., see “litigation regarding dhS rule: ‘Safe harbor Procedures for employers Who receive a no-match letter,’” www.nilc.org/immsemplymnt/SSa_related_info/index.htm.

¹⁹ Econometrica, inc., Final report, Small entity impact analysis: Supplemental Proposed rule “Safe-harbor Procedures for employers Who receive a nomatch letter (hereinafter Small entity impact analysis), January 15, 2008.

²⁰ Question submitted by chairman mccrery to Barbara Bovbjerg, house committee on Ways and means, Subcommittees on Social Security and oversight, transcript from Second in a Series of Subcommittee Hearings on Social Security Number High-Risk Issues, February 16, 2006 (hereinafter “Question submitted to Barbara Bovbjerg”).

²¹ ibid.

²² Questions submitted by chairman mccrery to the honorable James B. lockhart, house committee on Ways and means, Subcommittees on Social Security and oversight, transcript from Second in a Series of Subcommittee Hearings on Social Security Number High-Risk Issues, February 16, 2006.

²³ ibid.

²⁴ See office of the inspector general, Single Select Edit Routine.

²⁵ See econometrica, inc., Small Entity Impact Analysis. See also mark W. everson, commissioner, internal revenue Service, Testimony Before the Subcommittee on Oversight of the House Committee on Ways and Means, February 16, 2006) (http://waysandmeans.house.gov/hearings. asp?formmode=view&id=4707).

²⁶ In 2003, for example, approximately 98 percent of no-match cases reported less then $30,000 in wages. See “Question submitted to Barbara Bovbjerg.”

²⁷ chirag mehta, et al., Social Security Administration’s No-Match Letter Program: Implications for Immigration Enforcement and Workers’ Rights (hereinafter SSA’s No-Match Letter Program) (center for urban economic development, university of illinois at chicago, november 2003) (www. uic.edu/cuppa/uicued/npublications/recent/SSanomatchreport.pdf ).

²⁸ See, e.g., 73 Fr 15944–55 (march 26, 2008), “Safe-harbor Procedures for employers Who receive a no-match letter: clarification; initial regulatory Flexibility analysis”; and Stewart a. Baker, assistant Secretary for Policy, u.S. department of homeland Security, Testimony Before the Subcommittee on Oversight, Committee on Ways and Means, House of Representatives, February 16, 2006 (http://waysandmeans.house.gov/ hearings.asp?formmode=view&id=4709)

²⁹ See Bovbjerg, Coordinated Approach.

³⁰ it was not until 1978 that SSa began requiring all SSn applicants to provide evidence of u.S. citizenship or noncitizen status. See office of the inspector general Accuracy of the Numident File.

³¹ ibid.

³² “EDCOR letter,” 1. The decor employer letter is worded slightly differently: “This letter does not imply that you or your employee intentionally provided incorrect information about the employee’s name or SSn. . . . moreover, this letter makes no statement about your employee’s immigration status.” “decor employer letter,” 1. although the no-match letters may have been modified slightly each year, since 2003 the letter makes this point clearly to employers.

³³ 73 Fr 15944–55 (mar. 26, 2008).

³⁴ ibid.

³⁵ order granting motion for Preliminary injunction.

³⁶ 73 Fr at 15955, emphasis added.

³⁸ in reading about these steps, keep in mind that they comprise, as of the time this article was being prepared, a procedure proposed by dhS. until the rule if finalized, there is still a possibility that dhS will make further changes.

³⁹ “edcor letter,” 2. The decor employer letter contains a similar warning. See “decor employer letter,” 1.

⁴⁰ mehta, SSA’s No-Match Letter Program.

⁴¹ ibid.

⁴² See econometrica, inc., Small Entity Impact Analysis.

⁴³ ibid.

⁴⁴ richard B. Belzer, Ph.d., "comments on dhS's Safe-harbor interim regulatory Flexibility analysis." p. 1. http://www.regulations.gov/fdmspublic/ component/main?main=documentdetail&d=iceB-2006-0004-0324.1.

⁴⁵ For more information on how the rights of u.S. citizen and lawful workers are affected when employers exploit undocumented immigrants, see amy m. Traub, Principles for an Immigration Policy to Strengthen and Expand the American Middle Class: 2007 Edition (drum major institute for Public Policy, 2007) (http://drummajorinstitute.org/immigration/); house committee on the Judiciary, Subcommittee on immigration, Border Security, and claims, Testimony of Jennifer Gordon, Associate Professor of Law, Fordham University School of Law, June 21, 2005 (http://judiciary. house.gov/oversightTestimony.aspx?id=431).

⁴⁶ employers could face discrimination charges and penalties under either section 274 of the immigration and nationality act or Title Vii of the civil rights act of 1964. Section 274 prohibits employment discrimination based on national origin and citizenship status. Title Vii prohibits employment discrimination based on race, color, religion, sex, or national origin.

⁴⁷ employers could also face legal claims under state wrongful termination laws or under federal labor and employment statutes for retaliatory firings such as the national labor relations act, Fair labor Standards act, and other statutes depending on the underlying circumstances of the terminations.

⁴⁸ See econometrica, inc., Small Entity Impact Analysis.

⁴⁹ Belzer, "comments on dhS's Safe-harbor interim regulatory Flexibility analysis." p. 4.

⁵⁰ See, e.g., Jessica Johnson Bennett, “new year, new regulation Still looming,” Masonry Magazine, January 2008 (www.masonrymagazine.com/1-08/government.html).

⁵¹ See u.S. chamber of commerce comments on hdS docket no. iceB-2006-0004, Rulemaking Proceedings on Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, august 14, 2006.

⁵² Patrick P. o’carroll Jr., inspector general, Social Security administration, Reducing the Disability Backlog at the Social Security Administration, testimony before the u.S. house appropriations committee, Subcommittee on labor, health and human Services, education, and related agencies, February 28, 2008 (www.ssa.gov/oig/communications/testimony_ speeches/02282008testimony.htm).

⁵³ Richard Warsinskey, Past President, national council of Social Security management associations inc., Written Testimony for the Record, submitted to the u.S. house appropriations committee, Subcommittee on labor, health and human Services, education, and related agencies, February 28, 2008 (http://socsecperspectives.blogspot.com/2008/02/social-securityadvocacy- group-written.html).

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About The Author

Marielena Hincapie is a Staff Attorney and the Director of Programs at the National Immigration Law Center (NILC).

Tyler Moran is the Employment Policy Director at NILC.

Michele Waslin, Ph.D., is Senior Research Analyst at the Immigration Policy Center. She has authored several publications on immigration policy and post-9/11 immigrant issues and appears regularly in English and Spanish-language media.

This report was published by the Immigration Policy Center. For more resources on the role of immigrant and immigration policy in the U.S., visit their website at http://www.immigrationpolicy.org.

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The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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