AHC Comments - No Match Proposal

April 25, 2008

Ms. Marissa Hernandez
U.S. Immigration and Customs Enforcement
425 I Street, NW
Suite 1000
Washington, DC 20536

DHS Docket No. ICEB 2006-0004

Dear Ms. Hernandez:

Introduction

The American Horse Council (AHC) appreciates the opportunity to submit these comments on the Department of Homeland Security’s (the Department or DHS) supplemental proposal to amend its regulations to provide a “safe harbor” from liability under Section 274A of the Immigration and Nationality Act for employers who follow certain procedures after receiving a notice from the Social Security Administration (SSA), called a “no-match” letter,” or from DHS, called a “notice of suspect document,” which question the employment eligibility of foreign workers.

The AHC is a Washington-based association that represents the horse industry before Congress and the federal regulatory agencies. The AHC includes over 160 equine organizations representing all horse breeds and virtually every facet of the horse industry, including horse owners, breeders, veterinarians, race tracks, horse shows, trainers, rodeos, farriers, breed registries, horsemen's associations, state horse councils and commercial suppliers.

Despite substantial efforts to recruit and train U.S. workers, employers in the horse industry must often employ alien workers. Without these foreign workers, the horse industry could not operate as it does now. Equine employers exert every effort to ensure that their workers are authorized to work.

At the outset, the AHC suggests that comprehensive immigration reform legislation is needed to deal with the severe worker problems facing employers in the U.S. Dealing with the problems of admitting alien workers for temporary labor and providing a means for the various sectors of the U.S. economy, including the horse industry, to regularize their many foreign workers is the only substantive solution. Indeed stepping-up enforcement, as the Department proposes to do with these rules, without reform legislation in place is not the answer and will only make a bad situation worse.

Comments

DHS initially proposed these rules last August. Immediately, several associations went to court to enjoin their being made effective. In October, 2007 the U.S. District Court for the Northern District of California barred DHS from enforcing the new rules. In that decision, the district court ruled that that “DHS has failed to comply with these mandated requirements [set out in the Administrative Procedures Act] and, if allowed to proceed, the mailing of no-match letters, accompanied by DHS’s guidance letter, would result in irreparable harm to innocent workers and employers. . . The magnitude of the DHS’s safe harbor rule is staggering. If enacted, DHS and SSA will immediately mail no-match packets to 140,000 employers, identifying no-matches for approximately 8 million employees. There can be no doubt that the effects of the rule’s implementation will be severe.”

Unfortunately, the supplemental rule makes no substantive changes to what was proposed last August, even though the court agreed with the concerns raised by the plaintiff associations and ruled that the plaintiff associations “have raised serious questions going to the merits.” For example, in its ruling the court noted that “the government’s proposal to disseminate no-match letters affecting more than eight million workers will, under the mandated time line, result in the termination of employment to lawfully employed workers. This is so because, as the government recognizes, the no-match letters are based on SSA records that include numerous errors.”

Yet DHS does not take into account in the supplemental proposed rules the questions raised in the court decision regarding the accuracy and effectiveness of the SSA system. If the system does not meet a nearly 100% accuracy test, the Department should not use the SSA records until such accuracy is achieved. The AHC is concerned that employers that receive “no-match” letters may simply discharge the employees who will very likely not be able to correct any mistakes within the 90 day period allowed. Such employers are unlikely to be willing to risk liability while arguing with the federal bureaucracy over possible mistakes or waiting while employees attempt to correct them.

In addition, the proposed rule provides a timeline for the various steps an employer and/or employee must take if a “no-match” letter or “notice of suspect document” is received. This is basically a 90 day period, very short for what is expected to be done during the period. The AHC is concerned that the current times are neither practical nor fair. Employers, particularly some in the horse industry that do not have administrative staffs, will find it difficult to check the discrepancies and be sure they are corrected. If discrepancies cannot be worked out in this short time, and many SSA offices will have difficulty doing this, this will result in the termination of lawfully authorized workers. At a minimum, the Department should allow more time, or even suspend the running of the time period, if the delay is with SSA.

The AHC is also concerned about the potential costs of this stepped-up enforcement, which will be suffered by small businesses in the horse industry for the most part. These costs involve not only the expenses associated with terminating valuable employees and being forced to replace them, but also the possible costs associated with the likely increased discrimination lawsuits brought by the termination of employees who cannot resolve “mismatches.” In addition, the proposed supplemental rule does not include the assurances DHS attempted to provide in the original proposed rule. This increases the uncertainty that employers face.

Finally, the proposed rule will punish those employers who are trying to comply with the law while not addressing those who are not. Unfortunately, the result may be an additional incentive for employers and employees to enter the so-called “underground economy.” These workers do not pay taxes or social security. This is neither good economic policy nor in our country’s national security interest. But this could very likely be the result of increasing enforcement in the current situation. Again, only comprehensive immigration reform changes can ensure that increased security and enforcement do not lead to this unintended consequence.

These proposed regulations are misguided and likely to have an adverse effect on employers' willingness to operate within the current broken system, the U.S. economy, and national security.

The AHC appreciates this opportunity to comment on the proposed rule changes. If you need any additional information, please contact us.

Sincerely,

James J. Hickey, Jr.
President