![](media/image1.jpeg){width="0.9791666666666666in"
height="1.2708333333333333in"} **Central Florida Jobs with Justice 231
E. Colonial Drive, Orlando, Fl 32801**

**Thursday, April 17, 2008**

Marissa Hernandez

U.S. Immigration and Customs Enforcement

425 I St. NW, Suite 1000

Washington, D.C., 20536

Re: **Central Florida Jobs with Justice** Comments to DHS Docket No.
ICEB-2006-0004

Dear Ms. Hernandez:

**Central Florida Jobs with Justice**, submits these comments in
opposition to the supplemental proposed rule on Safe Harbor Procedures
for Employers Who Receive a No-Match Letter.

Central Florida Jobs with Justice is a broad coalition of labor,
community organizations, faith based groups and students that work on
worker rights and social justice issues in working income communities.

The Social Security No Match letters are not only an ineffective tool of
correcting discrepancies with worker's social security numbers; they
also have been used as a retaliation and discrimination tool against
u.s. citizens and authorized workers by Employers. Particularly, in
Florida, with the at will employment statues, our organization often
deals with many employees are often terminated on the spot by employers
without an opportunity to resolve the issue. Thus, leading to greater
work place violations with employees not receiving pay for time worked
or discrimination based on religion, race and gender.

Because of our experience with responding to the negative impact that
no-match letters have on workers, Central Florida Jobs with Justice is
dismayed that the Department of Homeland Security's (DHS) has reissued
the Safe Harbor Procedures for Employers Who Receive a No-Match Letter
without any substantive changes. As highlighted in the thousands of
comments that were submitted in opposition to the Safe Harbor rule in
2006, the no-match letters have resulted in thousands of unlawful
firings of U.S. citizen and employment-authorized workers. The
supplemental rule will have the same result; employers will
precipitously fire workers for whom they receive information about a
no-match for fear of employer sanctions. The implementation of the Safe
Harbor rule will also exacerbate the ways in which unscrupulous
employers use no-match letters to interfere with workers' rights. Both
of these scenarios harm all workers.

The purpose of the no-match letter is to ensure that workers receive
credit for their earnings, which can affect future disability and
retirement benefits. The Social Security Administration (SSA) no-match
letter program can not effectively meet DHS's goal of preventing
employers from unlawfully hiring unauthorized workers. Moreover, any
potential employer violation of unlawful hiring of unauthorized workers
that may be identified by no-match letters is far outweighed by the
costs borne by documented workers and U.S. citizens, employers, and SSA
itself.

The supplemental proposed rule does not rectify the inherent problems in
the Safe Harbor rule. We therefore urge DHS to reconsider its ill
conceived policy and withdraw the Safe Harbor rule.

**The rule does nothing to address issues raised by the court.**

On October 10, 2007, the United States District Court for the Northern
District of California issued a preliminary injunction blocking the
implementation of the 2007 final rule on no-match letters because of the
harm that the rule would have on thousands of innocent workers and
employers. Instead of addressing the concerns raised by the court, DHS
simply republished the same rule without any substantive changes.
Moreover, DHS fails to provide any new evidence or information that
no-match letters are an effective immigration enforcement tool.

Despite DHS's assertion that there is growing "consensus" that no-match
letters are a proxy for unauthorized immigration status, DHS fails to
provide any direct evidence to support this statement. In fact, the
published facts and data overwhelmingly demonstrate the opposite -- that
no-match letters are in no way a reliable indicator of immigration
status. The SSA Office of Inspector General estimates that of the 17.8
million records in SSA's database that contain discrepancies that could
generate a no-match letter, nearly 13 million (or 70 percent) of those
records pertain to U.S. citizens. SSA itself is unable to estimate how
many of the un-matched wage items in its database belong to undocumented
workers. The Government Accountability Office (GAO) testified before
Congress that the Earnings Suspense File (ESF) contains "hundreds of
millions of records, many unrelated to unauthorized work," and that "in
terms of poor earnings reporting, its focus is not on unauthorized
workers." GAO further stated that "most" of the earnings that have been
correctly reinstated belong to "U.S.-born workers, not to unauthorized
workers." In the Safe Harbor rule itself, DHS admits that it "does not
have adequate data to estimate the percentage of unauthorized employees
whose SSNs are listed on no-match letters."

DHS also asserts that the proposed rule will not affect employers with
"stray mistakes" or "inaccuracies" in their records because the employer
no-match letter is only sent to employers with at least 11 workers with
no-matches, and where the total number of no-matches represents more
than .5 percent of the employer's total Forms W-2 in the report.

It is inaccurate to say that the rule will only impact those employers.
Since the issuance of the proposed rule in 2006, employers, not knowing
the difference between the employer no-match letter that includes a
number of workers (EDCOR letter) and the individual employee no-match
letter sent to employers (DECOR), have implemented the Safe Harbor rule
upon receiving the individual employee no-match letter (DECOR letter).
Some employers have even implemented the no-match rule after conducting
self SSN audits through the SSA's systems, although not always following
the procedures recommended by DHS. Other employers have strategically
used the DECOR no-match letters to directly interfere with workers'
rights and have used the safe harbor rule as a shield to protect them
from liability for unlawful retaliation under labor and employment laws.

**The rule has resulted in the firing of lawfully authorized workers.**

The supplemental rule does nothing to address the ways in which no-match
letters have had an adverse impact on all workers, regardless of
immigration status. Employer confusion and misunderstanding of the
proposed rules, and whether or not receipt of an SSA no-match letter
would automatically trigger employer sanctions, has resulted in the
wrongful termination of U.S. citizens and immigrants who are lawfully
authorized to work in the United States. Shortly after DHS issued its
proposed rule in 2006, and continuing through the publication of the
final rule in 2007 (even after the federal court preliminarily enjoined
the final rule in October of 2007), employers nationwide fired lawfully
authorized workers after receiving no-match letters from the SSA.

**For example, we found one employer who dismissed 3 employees accusing
them of providing false documentation and were unauthorized to work
because of their heavy accent. Not only did these employees have proper
valid documentation, they were recent new U.S. Citizens and were
authorized to work.**

The experiences of workers in 2006, 2007 and early 2008 confirm that
employers will continue to summarily discharge workers without giving
them an opportunity to correct their records. Other times, the employers
give the workers the opportunity to correct the SSA discrepancy, but do
not even give the workers the time allotted in the DHS rule. Because
employers did not follow the admonishment on the original SSA letters
that no adverse action should be taken against workers who are the
subject of no-match rules, there is no reason to believe that they will
do so when it is clear that the no-match letters may well have employer
sanctions consequences. Regardless of the process set up in the rule,
employers will undoubtedly continue to unjustly fire workers. Under
current law, there is very little recourse for these workers unless they
file legal claims alleging the employer discriminated against them or
engaged in other unlawful action or engage in collective action to put
public pressure on the employer. Thus, all workers who are wrongly
terminated under the DHS rule, even if they are U.S. citizens or work
authorized immigrants, will be left without any meaningful remedy
against their employer or the federal agencies. Additionally, there are
workers who will be fired because they cannot correct their records
within the 93-day timeframe. According to DHS's own estimates, over
70,000 authorized workers could be wrongfully terminated due to the
rule.

**The rule will continue to undermine labor rights thereby causing a
detrimental impact on all workers.**

Since the beginning of the no-match program, unscrupulous employers have
misused no-match letters as a tool to undermine workers' rights to
engage in concerted activity, erase the benefits that come with
seniority, and to defeat a variety of workplace claims, including their
own failure to pay the minimum wage. This, in turn, affects the ability
of other workers to exercise their labor rights, and the conditions of
all workers suffer.

**For example, in a retail warehouse where 80 workers were organizing to
form a union , the company attempted to reverify specific worker's
Social Security numbers and work authorization documents.**

The DHS rule will continue to provide unscrupulous employers with an
added tool to undermine labor and employment rights of all workers.

**The rule will break SSA, an already overburdened agency.**

The SSA was created to provide benefits to workers when they retire,
become disabled or to their survivors at death. The agency is not an
immigration enforcement agency. It is well-documented that SSA's primary
database that is used for identification, the Numident file, is riddled
with inaccuracies. The no-match letter program is only one of several
programs that the SSA employs to correct the voluminous errors in its
database. Yet, the DHS's attempt to convert the no-match letter program
into an immigration enforcement tool using the SSA's fatally flawed
database will result in huge costs to the SSA and its employees.

The SSA is already overburdened with its current workload of delivering
services for which the agency was created. SSA estimates that the
average wait time for more than three quarters of a million cases
awaiting a hearing decision on disability cases is 499 days. SSA Field
Offices receive over 60 million phone calls each year and over half of
the callers receive a busy signal. Despite SSA's increased workload, its
workforce is at its lowest staffing level. Because SSA estimates that
four percent of the U.S. workforce has records that don't match, the DHS
rule will inundate SSA offices with visitors seeking to correct records.
According to SSA employees, the impact on SSA will be devastating. If
new employees are not hired to take on the new no-match work the
delivery of existing services will continue to deteriorate.

**The rule will be costly to workers and the economy.**

The loss of jobs and loss of productivity that will result due to the
DHS rule is a high price to pay for an ineffective immigration
enforcement tool. U.S. workers and the economy will undoubtedly bear the
brunt of the costs of the rule. Because of the millions of inaccurate
records in the SSA database, hundreds of thousands of U.S. workers will
be required to take time off of work to visit SSA field offices to
correct alleged no-match discrepancies. Many of these hundreds of
thousands of workers will likely be required to make multiple visits to
SSA offices in order for no-match issues to be resolved due to
evidentiary requirements. Several lawfully employment authorized workers
have made up to 5 (five) visits to SSA field offices in order to
"correct" no-match discrepancies. Workers will lose time from work and
pay to correct discrepancies, while employers will lose a much-needed
workforce.

**For example, in the case of the retail warehouse workers, many were
not given the time off to resolve these issues and were left to calling
in to work and ending up with discipline action for calling in to work.
Many of those same employees were later fired.**

Converting no-match letters into proof of unauthorized status will
exacerbate the already existing problems of the "off the books" economy,
and the gap between payroll and other taxes owed to states and the
federal government, and actual payment of said taxes. The rule will
allow unscrupulous employers to evade responding to no-match letters by
simply paying workers as "independent contractors," or completely off
the books in a cash transaction, thereby creating an even greater
un-regulated underground economy. This will undoubtedly hurt law-abiding
employers who pay taxes while providing a benefit to the "bad"
employers.

Based on the foregoing, the **Central Florida Jobs with Justice**
vehemently opposes the reissuance of the "DHS Safe Harbor Procedure for
Employers Who Receive a No-Match Letter." The reissued rule does not
remedy any of the inherent problems identified by the court, and will
continue to create havoc in the workplace and to the economy. U.S.
workers and employers will be negatively impacted by the implementation
of the rule. As such, we ask that DHS withdraw the Safe Harbor rule.

Respectfully submitted,

**Denise Diaz**

**Central Florida Jobs with Justice**

**231 E. Colonial Drive, Suite 150**

**407-451-2472**

**407-386-7807 Fax**

**<Centralfljwj@gmail.com>**