Judge Sidelines Controversial Immigration Rule

Thousands of small businesses, for the moment, will be spared from receiving Social Security "no match" letters that were slated to be mailed starting Sept. 15. The letters would have kicked off a tough new enforcement policy targeting illegal immigrants in the workplace.

But Federal Judge Maxine Chesney in San Francisco blocked the letters from going out until the merits of a lawsuit challenging the policy can be weighed. Chesney said the suit, filed by the AFL-CIO and other unions, raised "serious questions" about the Bush administration's authority to issue the new regulation.

The Social Security Administration (SSA) has been issuing the letters for years. Typically, they are triggered when information on an employee's W-2 income statement varies with SSA records. While the discrepancy is often clerical, mismatched information could also spotlight false or stolen Social Security numbers, which illegal aliens use to get legitimate jobs.

The federal Department of Homeland Security seized on the letters and issued the new rule last month, effectively turning them into a tool to root out illegal workers. It imposes tough new penalties on employers and requires them to take a number of steps to avoid investigation. They include firing the employee after 90 days if the dispute remains unresolved. In my column last week, I detailed how the policy would impose a huge administrative burden on small businesses and simply drive illegal workers underground.

The unions filed suit claiming the no-match letters would put a bull's-eye on the backs of legitimate workers who might be singled out simply because of clerical errors. For example, many Hispanic workers use dual surnames that might cause discrepancies, the suit said.

Union lawyers argued that the Social Security Administration was ill equipped to resolve disputes in 90 days. That raised the fear that employers will simply fire workers to avoid potential complications under the new policy. A 2003 study of the no-match program found that 34 percent of workers were fired without first being given a chance to correct errors.

The judge ruled that the government would suffer little disruption because of the delay compared with the hardships that employers and targeted workers might face. The next hearing is slated for Oct 1. At that time, another judge will consider whether to issue an injunction until the lawsuit can go to trial.