According to Robert J. Dolibois CAE, Executive Vice President of the American Nursery and landscape Association (ANLA), which also filed a lawsuit, historically what has happened is that the Social Security Administration was recently able to create electronic files putting all the records together by name and Social Security number. They could then compare payroll with SS numbers and names electronically and could send out a mis-match letter very rapidly. If there is a discrepancy such as the name submitted doesn?EUR??,,????'???t fit, or the SS number is invalid, or there is a mis-match between a valid SS number and the name of the person sending it into FICA the employer is alerted. If the SS number is phony, it?EUR??,,????'???s an open and shut case. But in case of a mis-match, (which is estimated to be somewhere between 4 percent and 10 percent?EUR??,,????'??+and probably toward the lower end), the SS records may be in error. Perhaps the employee got married or as is often the case, it may be because of naming practices with regard to the last name of recent immigrants. That kind of error rate is a result of an administrative error.

In the past, that letter went out annually and was sent by the SSA. It went to the employer who paid the taxes and filed the record. The purpose was to simply inform them they should let the employee know, and that the records must be corrected.

The core of the issue is that the SSA system has never been co-mingled with any of the other information databases of any other department. There was no system or legal precedent for doing that. However, now what is at stake is that the SSA said if the DHS is going after the employers, the SSA felt they should compare the numbers and names. If there was a mis-match they needed to alert the employer that there may be consequences for not seeking corrective action. But, DHS felt this might be a way to apply pressure on any employer who has hired an illegal worker.

By law, the SSA couldn?EUR??,,????'???t provide access to their computer records to the DHS since no legislation has been passed allowing that. So under the new guidance the SSA would send their personalized letter. It was accompanied by a generic ?EUR??,,????'??Dear Employer,?EUR??,,????'?? letter, printed on DHS stationary?EUR??,,????'??+not personalized?EUR??,,????'??+which said, if you are receiving this letter from the SSA, in the event that there is an employer investigation (a raid) the existence of this no-match or mis-match letter with no evidence of attempts to correct it, you will be deemed as having constructive knowledge.

The key issue is the connection between SSA?EUR??,,????'???s extremely private records and DHS?EUR??,,????'???s immigration enforcement. No legislation authorized this, but the new rule laid out a challenge. Once this became a proposal, DHS announced it and letters were going to start going out in August of 2007. Then various legal groups challenged it in court. Business groups such as ANLA, worker advocate or civil rights organizations such as the ACLU, as well as some unions filed lawsuits. The ruling was that the DHS hadn?EUR??,,????'???t followed procedures. They had done no due diligence regarding the impact of this regulation on small businesses. Their proposed rule is not in compliance and the suits claimed the generic letter from DHS cannot be sent along with the SSA letters, and the DHS couldn?EUR??,,????'???t marry that process with an implied ?EUR??,,????'??Safe Harbor.?EUR??,,????'?? The DHS looked at the 9th Circuit?EUR??,,????'???s initial ruling, and there was a question of whether they?EUR??,,????'???d let their new rule die or go back to the drawing board and come back with a revised rule.

When Immigration reform legislation surfaced, the DHS delayed issuing a revised rule. When they did so, allowing a longer response time, that revised rule was also objected to. Their final revised rule came out in June 2008 and it is now being reviewed by the 9th circuit. That ruling will come out in about six or seven weeks.

According to Dolibois, some erroneously think ANLA is trying to protect employers and defend complaints about an employer?EUR??,,????'???s right to hire illegal immigrants. But the reality is, if there is a raid it is only the employer who has actually paid the payroll taxes, filled out I-9s, and who is complying with the law of the land and has a track record of paying FICA taxes who will suffer the consequences of this effort. On the other hand, the employer who deliberately hires undocumented workers, pays people under the table and doesn?EUR??,,????'???t follow all the correct procedures is the one who gets off Scot free. Because there are no taxes paid and no record of a mis-match, there is no way to identify that employer. The new rule ends up rewarding the wrong groups.

Meanwhile, immigrants hired by employers trying to abide by the law are pouring 100s of billions of tax dollars into a giant slush fund that they will never be in a position to collect. The usual complaints about these people not paying taxes, which incidentally also include state, federal, social security and Medicare taxes, are not workable for those with legitimate jobs working for a legitimate employer. In addition to that, with every soda they pay sales taxes. When they rent housing, the landlord pays taxes to the city for his property and his income. The reality is that a 20-year-old illegal immigrant if employed by an employer who is following the law, is paying all the same taxes an able bodied American would have paid. They are paying their own way. They are not getting freebies such as hospitals and schools. In addition, that illegal worker didn?EUR??,,????'???t cost us a nickel growing up, whereas a native born worker attended American schools, participated in community sports programs, had school lunch and health care, all of which has been borne by the local community in order to produce him. In theory, the illegal immigrant coming here as an able worker is cheaper from a community standpoint.

At the moment, we have a 5 percent unemployment rate. We are also dealing with a probable 5 percent of the workforce that is illegal. Therefore, if you send all illegal immigrants home tomorrow, we will instantly have a 10 percent unemployment rate until we figure out how to handle this correctly.

Yet another thought is, where are all those tax dollars (those paid by illegal immigrants) going? What happens when all those tax dollars are pulled out of the general fund? If approximately 250,000 workers without legal documentation are pulled out of the system and the country, how does the government replace that money?

Another issue is this. What is the likelihood that some of those employers who don?EUR??,,????'???t want to face fines will find themselves shifting to an under the table economy. Even more thought provoking is the fact that State workforce agencies that are responsible for supplying labor are also possibly liable for supplying, albeit unknowingly, illegal workers. They also face the possibility of incrimination. If there?EUR??,,????'???s a raid on an employer who hired his employee through the state agency, is the state liable?

In six weeks, presumably, if the 9th circuit decides the letter from DHS still won?EUR??,,????'???t fly, then they?EUR??,,????'???re back to square one. Right now, there is the question of employers being responsible for unfairly terminating an employee, that could conceivably make that employer liable for giving that employee back retroactive pay. But that can only kick in if the DHS gets court approval for sending out those letters.