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DHS Rescinds "No-Match" Rule, Moves Forward with E-Verify as It Shifts Enforcement Focus to Employers
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DHS Rescinds "No-Match" Rule, Moves Forward with E-Verify as It Shifts Enforcement Focus to Employers

July 15, 2009
Policy Beat
By Muzaffar Chishti, Claire Bergeron

In a major reversal of Bush administration policy, the U.S. Department of Homeland Security (DHS) will rescind a controversial 2007 rule governing the use of social security "no-match" letters as an immigration enforcement tool.

At the same time, Homeland Security Secretary Janet Napolitano said her department will uphold a Bush administration rule from 2008 and require all federal contractors to enroll in the E-Verify employment verification program.

DHS stated that E-Verify provides employers with more timely information than "no-match" letters. Media reports have also speculated that by implementing E-Verify while rescinding "no-match," Napolitano is trying to adopt a "middle-of-the-road" approach to immigration enforcement.

The E-Verify rule decision came shortly after Napolitano said DHS would target employers who hire unauthorized immigrants, rather than the unauthorized immigrants themselves. DHS has since cut back on large-scale worksite enforcement raids and restructured its administrative fine process to create "meaningful penalties."

In line with this new direction, Immigration and Customs Enforcement (ICE), part of DHS, said it would expand audits of businesses suspected of hiring unauthorized immigrants. During the first week of July, ICE sent audit letters to 652 businesses, more letters than the agency issued in all of 2008.

Soon after her confirmation, in January 2009, Napolitano directed DHS officials to review the social security "no-match" rule and the E-Verify rule for federal contractors, among other policies from the previous administration. These decisions and policy shifts answer questions about the way Napolitano would address some of the more controversial immigration enforcement initiatives DHS inherited.

Napolitano's decision to focus on employers in worksite enforcement operations was generally lauded by immigrant advocates, who said the shift in policy represented a significant departure from past worksite raids. Advocates for more restrictive immigration laws argued that the new policy would not do enough to deter unauthorized employment.

In contrast, the "no-match" and E-Verify decisions received heavy criticism from across the political spectrum.

Proponents of tougher immigration enforcement, as well as several members of Congress, argued that revoking the "no-match" rule would weaken immigration enforcement initiatives. Just hours after the announcement, Senator David Vitter (R-LA) introduced an amendment that would bar DHS from revoking the "no-match" rule. The Senate unanimously approved the amendment on a voice vote.

Immigrant advocates and business groups criticized the decision to implement the 2008 E-Verify rule, saying it would result in the termination of lawful employees and would be costly for businesses.

The "no-match" letter rule established that DHS would send guidance letters to employers who were already receiving "no-match" letters from the Social Security Administration (SSA). Since 1994, SSA has sent "no-match" letters to employers who submit W-2 forms with names and social security numbers that do not match the information in its databases.

While there are various reasons for a "no-match," such as name changes, or incorrectly transcribed information, a "no-match" also occurs when an unauthorized worker provides a false social security number to his or her employer.

The proposed DHS guidance letters would have stated that if an employee did not resolve a "no-match" within 90 days, the employer would have to terminate the person or risk sanctions for hiring an unauthorized worker.

After U.S. District Court Judge Charles Breyer blocked the rule, DHS issued a new version in October 2008 and asked Breyer for an expedited hearing schedule, hoping for a final decision before George W. Bush left office. Breyer denied this request in December 2008, noting that he wanted the new administration to consider the issue.

Much like the "no-match" rule, the 2008 rule requiring all federal contractors to enroll in E-Verify was aimed at preventing the employment of unauthorized workers.

Formerly known as Basic Pilot, E-Verify allows employers to check whether new employees are authorized to work by entering their names and other biographic information into an online program. The information is then checked against SSA and U.S. Citizenship and Immigration Services databases. If the checks reveal that a worker is not authorized to work and the worker does not resolve the discrepancy, the employer is instructed to terminate the worker.

In November 2008, DHS published a final rule that required all federal contractors and subcontractors to enroll in E-Verify. Business groups filed a lawsuit shortly thereafter to stop the rule's implementation. The court agreed to a government-requested stay in proceedings while the Obama administration considered the rule.

E-Verify proponents say it is a fast and accurate way to determine whether new employees are authorized to work. Critics say it can result in the termination of lawful employees due to errors within government databases.

Others have predicted that wider use of E-Verify will result in the fraudulent use of lawful workers' documents because E-Verify can often only determine whether a worker has presented fake documents.

Policy Beat in Brief

Obama Summit on Immigration Reform. President Barack Obama held an immigration summit with key members of Congress June 25 and announced that Homeland Security Secretary Janet Napolitano will lead White House efforts on immigration reform legislation. Recently, several congressional leaders, including Senator Charles Schumer (D-NY), head of the Senate Judiciary Committee's immigration subcommittee, have publicly suggested that Congress could pass an immigration reform bill in the coming months. Others argue that internal disagreements over whether the bill should include a temporary worker program, combined with an already crowded legislative agenda, make it unlikely that Congress will pass such a bill soon.

HIV Travel Ban. Two government agencies have proposed a rule to end the ban on HIV-positive immigrants and visitors entering the United States. Since 1987, HIV has been listed as a "communicable disease of public health significance," which makes anyone with HIV inadmissible to the United States. Those with HIV have had to apply for a waiver in order gain admission to the country. In July 2008, Congress passed a law to lift the HIV travel ban. The U.S. Centers for Disease Control and Prevention and the Department of Health and Human Services will publish a final rule implementing the 2008 law after the comment period ends. Comments on the proposed rule will be accepted until August 17.

State Criminal Alien Assistance Program Funding. The House has voted to restore $400 million in funding for the State Criminal Alien Assistance Program (SCAAP), which the president's fiscal year 2010 budget proposed eliminating. Created through the Violent Crime Control and Law Enforcement Act of 1994, SCAAP provides federal reimbursement to states and localities for the cost associated with incarcerating "undocumented criminal aliens"— defined in the program as foreign nationals without legal status who have been convicted of at least one felony or two misdemeanors.

Report on the Executive Office of Immigration Review. The U.S. Department of Justice's Executive Office of Immigration Review (EOIR) has failed to adequately reduce the workload of immigration judges and provide better resources and training, according to a report released by the Transactional Records Clearinghouse (TRAC) at Syracuse University. The report states that two years after Attorney General Alberto Gonzales issued a directive that proposed hiring more immigration judges, few additional judges have been brought on although the court's workload has significantly increased. Consequently, the average amount of time a case is pending before EOIR has risen 23 percent since fiscal year 2006.

New REAL ID Bill. A new bill to amend the REAL ID Act of 2005 would not require states to link their databases containing driver's license information to a national hub, and it would no longer allow states to print social security numbers on state IDs. Senators Daniel Akaka (D-HI) and George Voinovich (R-OH) introduced the Providing for Additional Security in States' Identification Act of 2009 (PASS Act) to make new driver's license requirements less expensive and cumbersome for states to implement, and in response to privacy concerns about the information listed on REAL ID licenses. States would still be required to replace current driver's licenses with ones containing machine-readable technology, digital photos, and proof of identity and citizenship status. Congress passed the REAL ID Act to implement several recommendations of the 9/11 Commission.

FBI Name-Check Backlog. U.S. Citizenship and Immigration Services (USCIS) and the Federal Bureau of Investigation (FBI) have greatly reduced the number of backlogged immigration cases awaiting FBI name-check clearance. All applicants for immigration benefits must have their names cleared through the National Name Check Program, which determines whether an applicant has ever been the subject of an FBI investigation. As of May 2007, nearly 330,000 USCIS name checks were pending with FBI, and 32 percent had been pending for over one year. The agencies now aim to complete 98 percent of all name checks within 30 days.

Widows Penalty Bill. Senator Robert Menendez (D-NJ) has introduced a bill that would allow the widow or widower of a U.S. citizen or permanent resident to gain immigration benefits even after the death of his or her spouse no matter how long they had been married. Under current immigration law, the death of the U.S. citizen or permanent resident spouse terminates the petition unless the widow/widower had been married for more than two years. The new bill would also allow the children of deceased U.S. citizens or permanent residents to apply for legal status.

State and Local Policy Beat in Brief

Utah Immigration Enforcement Bill. Utah has implemented the provisions of a controversial immigration enforcement law that requires local sheriffs to question anyone booked in a state or local jail about his or her immigration status. The bill also requires public employers to use the E-Verify program to determine whether new employees are authorized to work, and public agencies to verify the immigration status of anyone 18 or older who applies for public benefits. Governor Jon Huntsman, Jr. signed the law, known as SB-81, in March 2008.

Court Ruling on Los Angeles Police Policy. A California appeals court has upheld a Los Angeles Police Department (LAPD) policy that prohibits police officers from stopping or arresting individuals solely to determine their immigration status. In Sturgeon v. Bratton, plaintiff Harold Sturgeon argued that the LAPD's Special Order 40, instituted in 1979, was preempted by federal and state law. The California appeals court upheld the decision of a lower court, which ruled that Special Order 40 did not contradict federal or state law, as nothing in the language of the ordinance prevents LAPD from cooperating with federal immigration authorities.

Washington Law on In-State Tuition. The spouses and dependent children of foreign-born professionals working in Washington state will be eligible to pay in-state tuition at state colleges and universities. The new law applies to the spouses and dependent children of H-1B, L-1, and E-1 visa holders who have lived in Washington state for at least one year. Those who backed the law said the measure would help attract high-skilled immigrants to the state.

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