WASHINGTON—The Department of Homeland Security isn't waiting for Congress to require employers to verify they're hiring legal immigrants. It's preparing new rules that would compel companies to take swift action when they receive notice that a worker may be using fake documents, even as another federal agency warns that the proposed rule would be an invitation to discrimination lawsuits.
Congress is stymied over immigration reform, particularly legislation that would require employers to check workers' Social Security information.
So DHS is moving ahead on regulations—expected by the end of the year—that would require employers to ascertain quickly an employee's immigration status if the Social Security Administration sends back a notice saying it found no match between an employee's name and his or her Social Security number.
That directive comes despite the fact that Social Security's current "no-match" letter warns employers that taking adverse action against their employees could "violate state or federal law and subject you to legal consequences."
Last month, the federal Equal Employment Opportunity Commission (EEOC), which oversees workplace discrimination cases, wrote to Homeland Security warning that its proposed rule "may create circumstances in which employers have incentives to take actions that violate . . . non-discriminatory provisions."
Social Security Administration officials confirmed that they're discussing similar concerns about discrimination with DHS.
Currently, when Social Security receives a W-2 earnings statement from an employer in which an employee's name and Social Security number don't match, a "no-match" letter is sent to the employer.
About 128,000 such letters were sent out this year for the 2005 tax year, roughly the same number sent for the 2004 tax year. The letters spell out what employers and employees must do to rectify the discrepancy but doesn't hold employers liable for workers who turn out to be illegal immigrants.
The new DHS rule would require the employer to check within 14 days to see if the mismatch was a clerical error and would give the employee 60 days to prove his or her status.
Currently, there's no time limit for resolving a "no-match" discrepancy. The EEOC wants any new rule to give workers 90 days instead of 60 to resolve paperwork problems.
Employers that can't resolve any discrepancies either internally or by checking with federal agencies would be required to fire the workers or face federal prosecution or fines for hiring illegal immigrants.
Business groups complain that this leaves them vulnerable to enforcement actions if they don't comply and costly lawsuits if they do.
"Legally speaking, an employer has to very careful," said Scott Vinson, vice president of government relations for the National Council of Chain Restaurants. "If you terminate an employee without any other evidence, you could open up yourself to liability for civil rights violations."
Dean Boyd, a spokesman for the Bureau of Immigration and Customs Enforcement, part of Homeland Security, disagreed.
"I don't think any company wants a bunch of employees with fraudulent Social Security numbers, or the Social Security numbers of children under the age of 5, or of dead people," Boyd said.
Employers who show that they tried to verify workers' identities and didn't know the workers were illegal would be in the clear.
"Knowing is the operative word," Boyd said. "If we go to a company and we find 50 illegal aliens, and the company says they looked at all the documents, they didn't know they were illegal, and the paperwork supports that, then they're in compliance."
The change would help agents go after companies that routinely seek out illegal immigrants or ignore signs like "no-match" letters.
"We have seen numerous cases where companies have hundreds of people on their payroll with bogus Social Security Numbers," Boyd said.
Employer groups, however, question why DHS is moving ahead with the rule when Congress is still narrowing differences between competing immigration bills that require mandatory verification of an employee's citizenship status.
"We thought it would be a smart thing for DHS to pause for a moment to wait and see . . . because this may ultimately have to be changed," said Vinson, who represents the chain restaurants. "From what I'm hearing, DHS does plan to proceed with this . . . and it's being fast-tracked."
Before the Sept. 11 terror attacks, immigration authorities rarely fined or prosecuted employers for hiring illegal immigrants, and the illegal workforce grew to an estimated 11 million people over the past decade. After the attacks, authorities accelerated immigrant-worker sweeps and increased prosecutions of employers.
Now, a small but growing number of companies has decided to verify their workers' identities more aggressively by joining the voluntary DHS program Basic Pilot, which allows companies to verify Social Security numbers over the Internet.
More than 11,200 employers are signed up for the program this year, twice last year's numbers. It's a big jump for a program in place since 1996, but a small fraction of the estimated 7 to 8 million employers nationwide.
Dunkin' Brands Inc., corporate parent of Dunkin' Donuts and Baskin-Robbins, joined in June. Chief Legal Officer Stephen Horn, in a statement to McClatchy Newspapers, said, "We see it as a way to help our franchisees comply with the laws when the authenticity of their new hires' credentials are difficult to discern."
But the program has accuracy problems and is far from foolproof, said Basic Pilot participants. It can't recognize employees who are using others' identification and Social Security numbers. That would require more sharing of tax records among the IRS, Homeland Security and Social Security Administration.
Advocates of a guest-worker program, such as the one proposed by President Bush, charge that the proposed DHS rule and Basic Pilot only drive workers toward employers who pay them off the books.
In the Maryland city of Upper Marlboro, undocumented workers gathered after dawn and awaited jobs as day laborers.
One recently arrived young man from Mexico's southernmost state of Chiapas, leaning against a contractor's truck and wearing a company-issued shirt embroidered with the name Lupe, underscored the verification challenge.
Lupe confirmed that he's without legal working papers and shrugged when asked if his employer verified his status.
"It hasn't been a problem," Lupe said.