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A QUARTERLY UPDATE ON IMMIGRATION LAW FROM MEYNER AND LANDIS LLP Third Quarter 2002 In this Issue:
SOCIAL SECURITY AND IMMIGRATION The Social Security Administration (SSA) is undertaking several activities that negatively impact immigrant communities nationwide. These actions could drive undocumented workers underground at the very time that our need to enhance national security highlights the importance of maintaining accurate records of foreign nationals in our country, conducting background checks to separate contributing individuals from those that may be here to do us harm, and utilizing immigrants' cultural and community knowledge to increase our intelligence capacity. Furthermore, American businesses need these foreign workers who are paying taxes and contributing to Social Security. The sheer volume of "no-match" employees, although not entirely related to undocumented workers, is a symptom of an immigration system that is not responsive to current economic realities. Efforts to address this problem, principally through the immigration reform proposals central to the U.S./Mexico discussions, will result in a more economically sound and secure America. No-Match Letters: The SSA annually reviews W-2 forms and credits social security earnings to workers. If a name or a Social Security Number (SSN) on a W-2 form does not match SSA records, the Social Security earnings go into a suspense file while the SSA works to resolve discrepancies. In recent years, the SSA has been unable to match employee information with SSA records for 6-7 million workers a year. SSA has deposited $280 billion dollars in the earnings suspense file as a result of the cumulative effect of these no-matches. Previously, the SSA would send no-match letters to employers when information submitted for at least 10% of their employees did not match SSA records. Until 2000, that system resulted in about 40,000 letters sent annually to employers. In 2001, that number jumped to 110,000 letters, with 1 in 60 employers receiving no-match letters. Starting in 2002, the SSA changed its criteria. An employer now receives a letter as long as one employee's information does not match the SSA's records. This change in practice has resulted in the SSA issuing 800,000 letters, the equivalent of 1 in 8 employers receiving these letters. Roughly 7 million workers were included on these letters. The no-match letter employers receive explains that the employer submitted at least one W-2 form in which a name or SSN did not match SSA records. The letter provides a list of the names and SSNs of all employees whose records do not match and requests that the employer provide the correct information within 60 days. It also instructs employers that the letter, in and of itself, does not provide a basis for taking adverse action against an employee and is not a statement about the employee's immigration status. Despite that language, employers have responded to the letters with panic and uncertainty. The letters have been confused with notification of immigration violations, with some employers immediately firing individuals appearing on the list. Even savvy employers are very confused as to how to respond to the letters and at the same time obey the immigrant worker protection laws. According to SSA, the increased production of social security no-match letters does not reflect policy changes that have resulted from the September 11 terrorist attacks, but rather an effort to reduce the earning suspense file and clean up its database to prepare for the release of its new Internet based Social Security Number Verification System (which is discussed later in this backgrounder). SSA has reported that many of the no-matches result from typographical mistakes and human error and that it is having the most problems with last names that are changed or hyphenated, such as women's names, shortened names, and compound names. However, SSA's push to correct its files was put into practice at about the same time as the agency stopped issuing social security numbers to foreign nationals who requested them in order to obtain a driver's license. This policy, implemented in March, has made it difficult for some immigrants to obtain driver's licenses, open bank accounts and use other services for which a social security number is often required. No matter why the no-match letters were issued, the result has been panic and confusion in immigrant communities. Employees face varying situations, depending on what actions their employers decide to take once they receive the no-match letter. These actions have ranged from employees being terminated immediately if their name appears on the no-match list, being given a limited timeframe in which to correct the inconsistent information, to quitting if they cannot correct the information. Confusing the issue further is employers' and employees' lack of understanding about how the no-match letters, the IRS regulations and employee protection laws interact with one another. It is important that employees be informed that they are able to ask for a copy of the letter and that they can consult with an attorney or advocate group. No-Match Letters and the IRS: Although the SSA does not have any power to enforce its request for corrected information, the SSA is required by law to provide the IRS with information on no-match W-2 forms. The IRS is authorized by regulation to fine employers $50 for each incorrectly reported social security number and is planning to begin enforcing the regulation after it develops a program for imposing penalties. The agency has indicated that it is currently considering fining employers for infractions that take place in 2002 and issuing the fines as early as 2004. However, it is unclear if it will meet this timeframe. Until the new program is implemented, employers are still subject to the current regulations that impose penalties if incorrect information is submitted to the IRS. These regulations provide waivers from penalties if the employer acts in a responsible manner and if the events of noncompliance are beyond the employer's control. As currently interpreted by an IRS representative, the regulations carve out a number of safe harbors for employers: If less than ½ of 1%, or less than 10, of the W-2 forms issued by a single employer do not match SSA records, the IRS will not assess penalties against the employer. The IRS will not fine an employer for incorrect information on the W-2 forms if they are based on a duly executed W-4 form and the employer has shown due diligence in trying to obtain the correct information. Due diligence may be shown if the employer solicits correct information from the employee by requesting that he fill out a new W-4 form. Documentation kept in the employer's files of this solicitation should insulate the employer from liability even if the employee doesn't provide the correct information. If the employer does not receive the corrected information from a particular employee, he must re-solicit the information in each succeeding tax year until he receives the correct information. Once the Social Security Number Verification System (SSNVS) (see below) is operational, employers will be able to verify an employee's social security number via the Internet. The IRS is not requiring that employers use this system, but it will be considered within the context of due diligence. An IRS representative has indicated that discontinued use of the system could be a factor in determining that the employer has not satisfied the threshold of due diligence. It is unclear how these safe harbors will change once the IRS develops its new plan. Social Security Number Verification System (SSNVS): The SSNVS is an Internet based system that enables employers to verify that an employee's social security number is correct. Currently, the system has been implemented as a pilot program for a small group of employers. The Social Security Administration has proposed broader access to the SSNVS. It remains unclear how the system would comply with the anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), safeguard employee's information from unauthorized verifications and prohibit employers from targeting select groups for scrutiny. Information Sharing with the INS: According to SSA and IRS representatives, neither agency is currently sharing detailed information with the USCIS. The only information that the SSA shares with the USCIS is information relevant to investigations between the two agencies and an annual review, required by law, of earnings reported for Social Security numbers that were assigned for purposes other than employment. The SSA is considering a program whereby it would share more information with the USCIS and possibly grant the USCIS authority to issue social security numbers (much like a hospital's authority to issue a social security card to new born infants). The IRS indicates that it does not share any information on no-match letters with any agency, but the new IRS program currently under development would include meetings with the USCIS. RESTRICTING IMMIGRANT ACCESS TO DRIVER'S LICENSES THE ISSUE: The U.S. Congress and state legislatures recently have begun considering measures to restrict immigrants' access to driver's licenses. These proposals go well beyond denying undocumented immigrants access to drivers' licenses and are likely to effect legal immigrants and even U.S. citizens. While intended to increase national security, these measures will not enhance our security but will interfere with effective law enforcement. BACKGROUND: The September 11 terrorist attacks have led to renewed calls for a national identification (ID) system. However, since national ID proposals have been defeated in the past, proponents are seeking to develop such a national system indirectly, through existing forms of ID such as state driver's licenses. The American Association of Motor Vehicle Administrators (AAMVA) is urging the federal government to fund and authorize a proposal to standardize state driver's licenses. The AAMVA recently announced that it supports uniform standards for driver's licenses across all fifty states. If implemented, uniform driver's licenses would result in a de facto national ID card. Representative Jeff Flake (R-AZ) introduced H.R. 4043 in March of 2002. This measure would bar federal agencies from accepting for any identification-related purpose any state-issued driver's license, or other comparable identification document, unless the state requires that such licenses or documents issued to nonimmigrant aliens expire upon the expiration of the aliens' nonimmigrant visa. At the same time, some state officials have linked the denial of driver's licenses to undocumented immigrants to efforts to combat terrorism, alleging that the driver's licenses that several of the terrorists obtained facilitated their activities. (However, the terrorists did not need U.S.-issued driver's licenses to board planes on September 11 because they had foreign passports that would have enabled them to board.) Since September 11, many states are considering proposals to tighten the rules regarding driver's license eligibility and to further restrict immigrants' access to driver's licenses. AILA'S POSITION: AILA opposes limiting immigrants' access to driver's licenses based on immigration status. Denying driver's licenses to large segments of the population is an inefficient way to enforce immigration laws and prevent terrorism and would make everyone in the community less safe. Restrictive Licensing Will Impede Law Enforcement and National Security. Many local law enforcement officials oppose restrictive licensing proposals because driver's license databases play an important role in enforcement. Restrictive proposals will undermine law enforcement because:
Denying driver's licenses based on immigration status also will prevent millions of drivers from obtaining insurance, which will increase uninsured motorist pools, contribute to current uninsured motorist losses of $4.1 billion, and increase insurance rates. Production and Sale of Falsified Documents is Likely to Increase if Larger Numbers of Noncitizens are Denied Drivers Licenses. Restrictive licensing will encourage the fraudulent production and use of the many documents that are available to establish lawful immigration status by transforming the driver's license into a de facto USCIS document that will become necessary to establish lawful status. These fraudulent documents will further complicate the task of motor vehicle administrators by requiring them to detect fraudulent USCIS documents. Additionally, restrictive licensing will increase the market for easily obtained fraudulent documents, such as birth certificates and social security numbers, to establish identity. According to the Department of Health and Human Services, there are 14,000 different versions of birth certificates currently in circulation. DEPARTMENT OF STATE ON PROCESSING OF NON-IMMIGRANT VISAS Since the terrorist attacks of September 11, 2001, the Department of State ("DOS") has been engaged with other US Government agencies in an extensive and ongoing review of visa issuing procedures as they relate to the security of our borders and our nation. As a result, some visa applicants have been subject to additional background and security checks worldwide. These checks are coordinated with US law enforcement and the security community. Applicants were informed when they applied that the applications were subject to delay. As a result of now improved inter-agency and automated procedures, the DOS, in the second week of September, was able to send authorization to consular posts worldwide to issue visas to more than 10,000 visa applicants following mandatory security reviews. Many foreign students, businesspeople and other travelers whose visa applicants have been subject to the security procedure known as "Visas Condor" will now see speedier visa adjudications. "Visas Condor" is a program under which posts abroad submit names of visa applicants subject to further analysis by appropriate US Government agencies. In the future, these security reviews are expected to take less than a month from the time of the visa application. The primary responsibility of consular officers is to carry out US law and to ensure that applicants to whom they issue visas will not pose a threat to the safety and security of the United States. This must take precedence over other considerations in adjudicating visa applications. As stated by the DOS, there is no automatic entitlement to a US visa. All visas are subject to the requirements of US Visa and Immigration law. The DOS has further stated that it will do everything possible to meet the needs of prospective travelers to the United States consistent with security responsibilities; however, individuals need to build in ample time for their planned travel in order to make sure they are not inconvenienced. The DOS notice relating to the processing of nonimmigrant visas is found at: http://travel.state.gov/specialnotice.html. NEW USCIS RULE HELPS EXPEDITE ISSUANCE OF GREEN CARDS (AND ASSOCIATED WORK AUTHORIZATION) EFFECTIVE JULY 31, 2002, an interim rule amends the INS' regulations by allowing an Adjustment of Status Application (Form I-485) to be filed concurrently with the Immigrant Worker Petition (I-140) when a visa is immediately available, thereby improving the efficiency of the process as well as customer service. This interim rule also provides that, if an employment-based visa petition is pending on July 31, 2002, the alien beneficiary may obtain the benefits of concurrent filing, but only if the alien beneficiary files the Form I-485, together with the applicable fee and a copy of his/her Form I-797, Notice of Action, establishing previous receipt and acceptance by the Service of the underlying Form I-140 visa petition. Further, this interim rule will allow the alien worker to apply for employment authorization using Form I-765, Application for Employment Authorization, and for advance parole authorization using Form I-131, Application for Travel Document, while the Form I-485 is pending. This is welcome news and, among other things, may alleviate the need to extend non-immigrant visa classifications (e.g., H-1B, L-1) if an I-485 may be filed on behalf of the beneficiary worker. It also allows for faster issuance of work authorization for spouses and children of the beneficiary worker. CHANGE OF ADDRESS NOTIFICATION REQUIREMENT INS has advised that it will now start enforcing a 50 year-old provision which requires all aliens to report address changes to the government within ten (10) days or risk deportation. All non-citizens must notify USCIS of any address change through completion and filing of Form AR-11 directly with USCIS at the address noted on the Form. The form may be accessed from the internet address: http://www.ins.usdoj.gov/graphics/formsfee/forms/ar-11.htm. Please note that there is no fee in connection with the filing. The material contained in this newsletter is for informational purposes and should not be considered legal advice. For further information, please contact Anthony F. Siliato, Esq. Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102 (973) 624-2800 -- asiliato@meyner.com Website: www.meyner.com |
The immigration law practice of Meyner and Landis LLP provides a full scope of immigration law services. This includes representation of large and small businesses seeking to recruit and retain foreign nationals to meet staffing goals; foreign nationals seeking work or trader or investor opportunities or wanting to achieve family reunification; and foreign nationals in deportation proceedings, including those who face removal from the U.S. due to criminal convictions.
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