DID YOUR BUSINESS GET A
LETTER FROM SOCIAL SECURITY?
If so, you are not the only
one.
By Christopher Kerosky
This article was published in the Sonoma County Gazette this
month: https://www.sonomacountygazette.com/sonoma-county-news/immigration-stories-by-christopher-kerosky-june-2019
Many North Bay businesses
received a surprise in the mail recently: letters from the Social Security
Administration (SSA), notifying them that certain social security numbers they
reported for their employees do not match the SSA database. This has created concern among many local
employers and their workers, who fear this might be the first step toward an
investigation by ICE.
When these letters
arrive, many undocumented immigrants choose to quit their jobs rather than face
possible detention and deportation.
These so-called “no
match” letters were common in prior administrations, but were discontinued by President
Obama in 2009. The Trump Administration announced
that they have resumed the practice, sending out over 500,000 such letters
since March. Apparently, this was a
result of the “Buy American, Hire American” Executive Order issued by Donald
Trump earlier this year.
Implications of getting a No-Match Letter.
No-match letters are
issued when the employee’s name and Social Security number provided by the
employer conflict with SSA records. According to the agency, about 10% of the over
250 million records submitted contain non-matching numbers.
This frequently happens
when an undocumented worker presents a fake card to their boss because they
cannot obtain actual social security cards under our federal laws. When the employer dutifully submits the
number to the government, the SSA notices the discrepancy and issues the letter. There can be other explanations for the
no-match such as typographical errors or mistakes in the SSA database.
The law is a bit
unclear as to what employers are required to do in response. SSA suggests the employer to talk with
employees and attempt to resolve such discrepancies within 60 days. The SSA
doesn’t require the employer to fire an employee whose number doesn’t match. However, the Department of Homeland Security (DHS)
contends the employer has the obligation to do so within a “reasonable” time
period of having constructive knowledge that the employee is unauthorized to
work—which may result from getting a no-match letter. Yet it’s a violation of state and federal
laws to discriminate against an employee based on nationality and wrongful
termination could result in liability.
In short, each situation
is different and employers must proceed carefully should they receive such an
SSA letter.
Hospitality, Agricultural and Construction Industries Targeted
Those businesses most
affected make up a large part of our North Bay economy: hospitality (including
restaurants and hotels); agriculture (including wineries and vineyard
management); and construction. According to Sonoma
County’s website, agriculture, construction and tourism make up about 20% of the
county’s workforce and are major drivers of its economy.
These are sectors of our
economy that rely heavily on undocumented labor. The United States has an estimated 7.8
million undocumented immigrants working or about 15% of the work force,
according to the Pew Research Center.
But immigrants make up approximately 33% of agricultural workers, 32% of
the hospitality industry, and 25% of construction workers.
It is pretty clear that
these sectors of the economy have received the largest number of the “No-Match
letters”. According to the New York
Times, approximately 50 growers and ag businesses in the San Joaquin Valley
have received these letters recently, affecting almost 25,000 workers. We don’t know how many County businesses who
received the no-match letters, but I have talked to many local business owners that
did.
Will
Social Security share info with ICE?
It remains to be seen whether the SSA will communicate to ICE
the names of employers or employees in response to no-match letters. If so, this could result in audits of
employers, the firing of many undocumented workers and potentially deportation
proceedings against some of them.
Our country has long had
a “Don’t Ask, Don’t Tell” attitude policy toward undocumented labor: the feds
officially say it’s against the law, but they’ve intentionally looked the other
way, knowing that these industries would suffer severe consequences if these
laws were strictly enforced due to labor shortages.
This may be changing now with
the Trump Administration’s broad and aggressive anti-immigrant agenda. “It’s just another
tactic to further marginalize and scare our immigrant communities and their
employers,” stated Congressman T.J. Cox (D.Fresno) in response to the SSA
announcement.
In fact, the only
sensible solution is comprehensive immigration reform that addresses both the
labor shortage in this country and the large undocumented population here. At least for now, reform seems far away. We’ll likely have to wait until at least 2021
for that, and maybe beyond.
Until
then, employers should not be surprised if they get a letter in their mailbox
from the Trump Administration.
****************************************************************
CHRISTOPHER A.
KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration
law for over 25 years. He graduated
from University of California, Berkeley Law School and was a former counsel for
the U.S. Department of Justice in Washington D.C.
Mr. Kerosky has
been recognized as one of the top lawyers in Northern California for 10 years
by “Super Lawyers” Magazine. See www.superlawyers.com.
WARNING: The foregoing is a
summary generally discussing legal issues. It is not intended to be a
substitute for legal advice. We recommend that you get competent legal advice
specific to your case before filing any application or petition.