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Congress eyes restoring the controversial 'no-match' rule

by Joan Murphy | July 14, 2009
WASHINGTON -- Congress is trying to overturn the Obama administration's latest decision to rescind the controversial "no match" rule, but produce groups believe the rule may stay buried for now.

Department of Homeland Security Secretary Janet Napolitano announced July 8 that the agency planned to ditch the current Social Security Administration rule, which has been blocked by a court order, in favor of a regulation that would award federal contracts only to employers who use E-Verify to check employee work authorization.

The 2007 no-match rule directed employers to act if they receive SSA no- match letters: notices from the Department of Homeland Security that call into question work eligibility information provided by employees. Immigration advocates sued the government, saying the rule would threaten jobs of U.S. citizens and other legally authorized workers because of errors in the government's Social Security earnings databases.

But Sen. David Vitter (R-LA) attached an amendment to the Department of Homeland Security spending bill earlier this month that would block the agency from using fiscal 2010 funds to rescind the Social Security no match rule.

"That the Senate passed this amendment on the very next day after the administration stated their intent to rescind the no-match rule serves as an even stronger indicator of where Congress stands on this issue," said Sen. Vitter. "The Senate's unanimous approval of this amendment sends a clear message to the Obama administration that we will not allow weak immigration laws."

Jason Resnik, Western Growers Association's assistant general counsel, said that he is dubious that the Vitter amendment -- even if it ends up in the final legislation -- can do what it says it does.

The no-match rule has been tied up in litigation for years, said Mr. Resnik. "The amendment won't do anything to change that," he said, suggesting that the rule is unlikely to "see the light of day."

United Fresh Produce Association's Robert Guenther agreed. The administration could use FY 2009 money to rescind it, he noted. The DHS spending bill still has to be agreed to by conference, so "it's by no means done," he said.

"We think the administration made the right decision to pull it back and rewrite it," added Mr. Guenther. As for whether it sends a signal on the prospects for immigration reform, Mr. Guenther didn't think so. Senate Majority Leader Harry Reid (D-NV) said last month that he would like the Senate to pass comprehensive immigration reform this year.

Earlier this month, the administration reiterated support for mandatory E- Verify as a means for businesses that receive federal contract and federal stimulus money to check employees for compliance with federal immigration laws. The DHS-operated system compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers' employment eligibility.

"E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce," said Secretary Napolitano.

While E-Verify may be a good tool for employers that choose to use it, "we believe it should remain voluntary," said Mr. Resnik. It's largely a pilot program that is being ramped up very quickly. "We don't think E-Verify will be reliable enough for a large number of users."

But some members of Congress are eager to expand the program. Sen. Charles Grassley (R-IA) attached an amendment on a spending bill that would allow employers to verify the work status of all workers, not just new hires, through the E-Verify program.

"It just makes common sense to allow employers the opportunity to access this free, on-line database system to check their workers," Sen. Grassley said July 8. "When people enter this country illegally, they create undue delays and hardship for people following the rules."