Illegal Alien Employers Boast About No-Match Letter Sabotage

Regulations Torpedoed in Secret By DHS and the White House

Representatives of the Essential Workers Coalition and the U.S. Chamber of Commerce have asserted that they have successfully sabotaged implementation of a proposed DHS regulation which would require employers who receive ‘no-match’ letters from the Social Security Administration to correct the discrepancy, or be considered to have “constructive knowledge” of unlawful hiring of illegal aliens at their business.

On a January 11, 2006 teleconference for immigration lawyers sponsored by the American Bar Association, Laura Reiff, a former INS attorney representing low-wage employers who hire large numbers of illegal aliens, said that the Chief Counsel of Customs and Border Protection (CBP)* Alfonso Robles, told her at a meeting at U.S. Department of Homeland Security headquarters in late December that his office was giving low-wage employers “a little Christmas present” by not sending the proposed regulation to the Office of Management and Budget at the White House. Failure to send a regulation to OMB effectively kills the proposed reform bureaucratically, out of the public eye.

The regulation was issued with great fanfare by DHS in June 2006. The spokesman for the U.S. Chamber of Commerce on the teleconference, Angelo I. Amador, also confirmed that the CBP Chief* Counsel had sabotaged the regulation, which the Chamber cynically characterized as a public relations ploy by Secretary Chertoff to undermine support for H.R. 4437, the enforcement-only bill which was passed by the House of Representatives in the 109th Congress, by pretending to take the initiative at the Homeland Security agency level.

If implemented, the regulation would have greatly strengthened the enforceability of the 1986 employer sanctions program, and would also have been a significant step in combating identity theft by aliens. “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter”, 71 Fed. Reg. 34281 (June 14, 2006) would have amended 8 C.F.R. § 274a.1 to change the application of the principles of constructive knowledge for employers who receive a no-match letter. Under the proposed rule, an employer would be deemed to have constructive knowledge that an employee is not an unauthorized worker if it failed to take “reasonable steps” after receiving a no-match letter from Social Security Administration (SSA), that the combination of name and SSN submitted for an employee does not match SSA records; or after receiving written notice from Immigration and Customs Enforcement (ICE) that the immigration employment authorization document presented by the employee in completing Form I-9 was assigned to another person, or that there is no agency record that the document was assigned to anyone.”

Here is the full text of the regulation, and here is an analysis done by a law firm of the regulation.

*corrections: the initial story said the overal DHS General Counsel was responsible and mis-identified CBP General Counsel Phillip P. Perry instead of Robles as another responsible official.