The Department of Homeland Security will issue new regulations that amount to the first step in a two step-process that — if completed — would put the government in position to shut down the illegal-immigration jobs magnet.
The second step will require a new, but very simple, law. As a consequence, we will soon see whether Congress and President Bush truly want to crack down on corporations systematically violating the immigration law.
The new regulations involve the so-called “no match” letters that the Social Security Administration sends each year to employers who hire illegal aliens.
One of the government’s dirty little secrets (which I have done my best to unveil) is that SSA already knows which employers habitually hire large numbers of illegal aliens, but refuses to give this information to DHS because it interprets Section 6103 of the Internal Revenue Code as forbidding it from doing so.
SSA knows the identity of these employers because it carefully tracks the “no-match” W-2 forms employers submit each year. These are W-2s on which the name and the Social Security number don’t match.
SSA Inspector General Patrick O’Carroll told Congress last year that illegal-alien workers were the “chief cause” of these W-2s. This is because illegal aliens routinely use someone else’s Social Security number or a fraudulent one when they apply for a job.
Every year, SSA sends out millions of letters to the employers and workers associated with no match W-2s. For starters, it sends a notification letter to every employer who files more than ten no-match W-2s if they account for more than 0.5 percent of the employer’s workforce. Secondly, it also sends no-match letters to the employees listed on no-match W-2s. Finally, if an employee’s address is incorrect or incomplete on a no-match W-2, SSA sends an additional no-match letter to the employer seeking its help in getting a correct name and Social Security number from the worker. As a result, employers who routinely hire massive numbers of illegal aliens, routinely receive massive numbers of no-match letters from SSA.
A September 2005 audit report from SSA’s Inspector General, for example, said there were 95 employers in tax year 2002 who received 1,001 or more no-match letters. A September 2006 audit report revealed that 6 employers in tax year 2002 filed between 15,001 and 36,000 no-match W-2s. Another 65 employers in that tax year filed between 5,001 and 15,000 no-match W-2s. These are the biggest scofflaw businesses powering the jobs magnet. They are ones that deserve to get busted first and most prominently if the government actually launches a serious campaign of worksite immigration enforcement.
What DHS will do this week to make such a campaign more plausible is lock the backdoor through which these businesses could escape legal accountability for knowingly hiring illegal aliens.
As the New York Times reported earlier this week, DHS will promulgate new regulations telling employers who receive no-match letters what they must do to protect themselves from prosecution for knowingly hiring illegal aliens.
Under current regulations, receipt of a no-match letter does not in and of itself demonstrate that an employer knew he was employing illegal aliens. Indeed, the text of the no-match letter SSA now sends employers says: “This letter does not imply that you or your employee intentionally provided incorrect information about the employee’s name or SSN. It is not a basis, in and of itself, for you to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual.”
DHS Spokesman Russ Knocke told me this afternoon that he cannot talk about the details of the new regulations until they are officially released. But the draft regulations were published in the Federal Register last June. Basically, they require an employer to ask an employee with a no-match W-2 to correct the information on the W-2. After that, the employer must verify with SSA that the name and Social Security Number now match. If a match is not verified, say the proposed regulations, “then the employer must choose between taking action to terminate the employee or facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, violated INA section 274A(a)(2), 8 U.S.C. 1324a(a)(2).”
So far, so good. But Knocke told me that the new regulations will not require SSA to hand over to DHS its list of employers who file no-match W-2s. As it stands, in other words, DHS would still need to track down scofflaw employers on its own — without help from SSA. Knocke noted that DHS would like to get the no-match list from SSA and that one element of the immigration bill that failed in Congress earlier this year would have made it available to the department.
In sum, DHS’s new regulations will close the back door through which scofflaw employers can escape accountability, but will not give DHS the road map to those employers’ front doors — namely, the SSA no-match list.
When Congress returns in September, President Bush should ask it immediately to pass a very simple bill mandating that SSA give this list to DHS.
— Terrence P. Jeffrey is editor-at-large of Human Events.