The Department of Homeland Security and the Department of Commerce recently announced a number of tough policy measures the Bush Administration is now taking in an effort to improve border security and immigration enforcement.

Critics charge that many of the changes, including the social security “no match” rule - could have a profoundly negative effect on the US economy and create social chaos across the country. The recent changes announced relating to immigrants include:

Interior Immigration Enforcement - with the addition of hundreds of state and local law enforcement officers trained to assist in immigration enforcement. By the fall 2007, the government expects to have increased Immigration and Customs Enforcement (ICE) enforcement teams devoted to removing fugitive aliens by five times the current rate. The Justice Department will issue a rule requiring that aliens in voluntary departure status, who file motions to reopen their cases, will have their voluntary departure status terminated, be subject to the order of removal and a new $3000 civil penalty for failing to leave the U.S.

Worksite Enforcement

New regulation, called Social Security "No-Match" rule will now be enforced against employers beginning September 14, 2007. Employers who receive a letter from the Social Security Administration (SSA) or a letter regarding employment verification forms from the Department of Homeland Security (DHS) will now have 90 days to resolve no match letters involving mismatched social security numbers and worker names.

The rule also provides "safe harbors" employers can follow to avoid a finding the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the US. Employers with knowledge that an immigrant worker is unauthorized to accept employment are liable for both civil and criminal penalties.

Employers are required to report social security earnings for their workers. Form W-2 lists an employee’s name, social security number and the worker’s earnings. In some cases, the social security number and the name of the employee do not match. When this happens, a “No Match” letter is generally issued by the SSA.

In some cases, the no-match is the result of a clerical error or a name change. In other cases, it may indicate that an employee is not authorized to work. ICE issues similar letters to employers after they conduct audits of an employer’s Employment Eligibility Verification forms (the I-9s) and find evidence that an immigration status document or employment authorization document does not match the name of the person on the I-9 document.

“No Match” letters are not issued to employers when an employee’s Social Security number is valid and has been issued to that employee, even if the Social Security card itself states that employment is authorized with INS authorization only. The SSA does not determine if an individual with a valid Social Security number is valid to work, only whether the Social Security number itself is valid for that individual’s name. This means that individuals who were issued valid Social Security numbers by the SSA will likely not be the target of SSA “No Match” letters.

Finally, the DHS and SSA are determining methods to prevent workers from getting credit in social security for money paid in while being in “illegal” status.

A positive proposal would change the existing H-2B and TN “Guest Worker Programs”. The DHS is studying the existing H-2A agricultural worker program to find ways to provide farmers with legal foreign workers, which is expected to dramatically speed up processing on H-2B cases. Further, TN visas for Canadians and Mexicans will now be granted in three year increments, the same as for H-1Bs. The DHS and Dept. of Labor (DOL) are also being directed to study and report on further administrative reforms to visa programs for highly skilled workers.

Question: My parents (who are legal residents in America) filed a family petition to sponsor my sister (who is widowed) and her 2 children a long time ago in December of 1999. My sister and nephews have been living in New York with my parents ever since. Both my parents have now applied for American citizenship. My question is, if they become citizens, will it hurt the case they filed for my sister, since it was based upon them being residents? Once they get their citizenship, do my parent have to file a new petition for her and the kids?

Answer: Fortunately, once your parents become citizens, your sister and her minor children will be able to file an Adjustment of Status (Green Card) application much earlier. As U.S. residents sponsoring your sister, the line for visa availability for the 2B category: adult, unmarried children of U.S. residents, goes all the way back to April of 1998. That means that right now, there are only visas available for adult, unmarried children those parents filed I-130 petitions for them by April 1998. For I-130 petitions filed now in that same category, there’s nearly a ten year waiting time!

The good news is that once your parents obtain their Naturalization certificate, the new category your sister will be in, called 1st preference: adult, unmarried children of U.S. Citizens, only has a line going back to August of 2001 (six years). So, since the I-130 petition was filed by at least one of your parents for your sister in 1999, there will be an immigrant visa immediately available for her once your parents are naturalized.

There is no need to file a new application. If your sister was outside the U.S., once your parent received his or her Naturalization Certificate, the National Visa Center would need to be notified to begin consular processing so your sister and nephews could get the immigrant interview in their home country and enter the U.S. as Residents. This would have taken an additional year or so for consular processing. But since they are all here now, they can obtain residency inside the U.S. The only additional requirement is that your sister and each minor child age 14 or over must pay a $1,000 penalty when they file for their Green Cards under 245(i).

*This column is published for the purposes of providing a general understanding of immigration legal issues, as a public service and is not intended to establish an attorney client relationship. Consideration given to any immigration issue is not intended in any way to substitute for individual legal consultation with a licensed attorney. Readers should understood that this column and the foregoing illustrations are subject to different interpretations in each particular immigration case that may arise and no one reading this column should attempt to apply his own particular situation to the principles described herein. Readers with specific legal immigration issues should consult their attorney. If you have an immigration issue and do not know an attorney, you may call The Bar Association's Lawyer Referral Service at: 800-342-8011.