On October 10, 2007, a federal judge in California entered a preliminary injunction against the implementation of a Department of Homeland Security (DHS) rule that would have exposed employers to civil and criminal liability for violating federal immigration law if they did not follow prescribed “safe harbor” procedures after being notified of a discrepancy in an employee’s Social Security number.  Before the injunction, the government had planned to send out letters threatening employers with such action if they did not resolve mistakes between reported Social Security numbers and official records, which may affect some 8 million workers.  The Social Security Administration (SSA) has sent letters informing employers of mismatches for years, but those had not been expressly tied to immigration enforcement. 

Under the rule’s “safe harbor” provisions, employers were given 30 days to determine whether a mismatch was caused by the employer’s error; if necessary, employees then had an additional 60 days to resolve the discrepancy with SSA.  At that point, a new I-9 form had to be completed, and the employer risked liability if it continued to employ the employee without being able to confirm his or her authorization to work.

The plaintiffs in the California lawsuit, a consortium of labor, civil rights, and business groups that included both the AFL-CIO and the U.S. Chamber of Commerce, argued that it was impossible to implement a system to resolve Social Security number mismatches under the timetable imposed, that hundreds of thousands of individuals could lose their jobs even if the mismatch resulted from SSA errors (which are unquestionably abundant), and that employers were presented with a Hobson’s choice.  The court found that the balance of hardships tipped sharply in favor of the plaintiffs. 

As we went to press, DHS asked the California judge to give more time to investigate the concerns raised in the injunction suit, and then to re-issue its rule.

Eric J. Pelton