New ID Rules Proved No Match for Constitutional, Practical Challenges

Colorado ACLU Director Cathryn Hazouri and immigration lawyer Ann Allott differ sharply on the effectiveness of the Social Security Administration’s identity check system in finding illegal immigrants. But they agree just as strongly about this:

Using the system to automatically fire workers whose numbers don’t match their names is a big mistake.That won’t be happening now that the U.S. Department of Homeland Security has abandoned a new policy that forced employers to terminate employees within 90 days of receiving a so-called “no match” letter from the Social Security Administration or face punishment.

The ACLU forced the government’s hand on a policy that was supposed to fight illegal immigration. In a federal lawsuit, the ACLU that claimed the Social Security database was so full of inaccuracies that it stood to victimize millions of American citizens by encouraging their bosses to fire them.

Homeland security officials backed down last week. They withdrew the new policy and asked the federal court to put the ACLU lawsuit on hold while they revised the no-match policy. That should happen this month.

Meanwhile, Hazouri and Allott expressed relief for very different reasons.

“To say the Social Security Administration system is inaccurate – that’s an understatement,” Hazouri said. “In 2006 an inspector general’s report found 17.8 million inaccuracies in the Social Security database. Twelve-plus million of those belonged to American citizens. If a no-match letter received under the new rules is grounds for firing, it’s easier just to fire someone” rather than give them the time to straighten the situation out.

That was happening under the new rules.

The most vulnerable people in the new system, said Hazouri, were folks with “foreign-sounding names with a little darker skin.”

For now, said Allott, it is back to the old system where a Social Security no-match letter includes language that specifically says the letter cannot be used as a reason to fire an employee.

“You must act on it,” telling an employee to resolve the discrepancy in his or her name and Social Security number, Allott explained. “In acting you might find a reason to fire someone.”

But you cannot fire based only on the Social Security Administration’s notification, which is something the new no-match policy encouraged.

Beyond clear constitutional problems with the new no-match policy and its predilection for racism was the fact that it didn’t solve the problem it set out to address.

Allott, whose clients have found the Social Security check system to work well for identifying undocumented workers, still hated the new no-match policy. The policy simply drove the undocumented further into an underground economy while ruining small businesses that cannot find legal workers, she said.

“I’m extremely relieved,” said Allott, who oversees an office of a half-dozen immigration lawyers in Littleton. The ACLU lawsuit “was expensive and embarrassing to the government. The government needed to rethink its position.”

Actually, said Allott, the government needs to pass comprehensive immigration reform that gives employers and employees a way to do business legally.

“The reality is we need more legal workers,” Allott said.

With comprehensive immigration stalled in Congress and anti-immigrant rhetoric driving much of the debate, no functional way exists to do that. The result is chaos.

“There are 83,000 workers in Colorado using incorrect Social Security numbers,” Allott alleged.

Without giving those workers a path to legal status, enforcement of immigration laws and employer sanctions merely force the workers out of the regular economy and into a cash-under-the-table status. That costs the illegal immigrants, but, Allott stressed, it isn’t going to make them return to their native countries because there is no work for them there.
Meanwhile, the U.S. loses massive amounts of tax revenue, including, ironically, contributions to an already stressed Social Security system.

Yet options for getting legal foreign workers to replace those fired for working under false Social Security numbers have gotten worse, not better, in an atmosphere too often dominated by xenophobia.

“Green card lines are backed up for 10 years,” Allott said. “The Department of Labor gives (employers) certification for foreign workers. But they can’t get them here. It creates false hope and a whole lot of fraud.  I had a client who paid someone $30,000 to get green cards for workers who are never going to get here.”

Adding to the problem, the number of H2B visas for seasonal workers who enter the country for several months, but then return home remains frozen at a level that insures the supply cannot meet the demand.

The result, Hazouri and Allott agree, is a harvest of immigrant hatred that leaves crops rotting in the fields and employers struggling to stay in business.

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Jim Spencer

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