Capitol Hill

As a new Congress and presidential administration get under way, the outlook for efforts to address immigration issues is uncertain. However, NRCA anticipates a major victory on an immigration issue of great interest to the roofing industry—the Department of Homeland Security's (DHS') so-called "no-match" rule. An important preliminary victory was achieved in December 2008, and it is anticipated this ultimately will lead to major modifications or rescinding of the rule.

A flawed rule

DHS first proposed the no-match rule, which is purportedly aimed at cracking down on illegal immigration, in 2006 and in August 2007 issued a final regulation as a key component of the Bush administration's plan to address immigration issues with regulatory tools after the collapse of comprehensive immigration reform legislation in Congress.

If implemented, the rule would require employers to terminate employees who receive Social Security Administration (SSA) no-match letters if discrepancies cannot be resolved within 90 days. Employers who fail to terminate employees caught in this situation would be liable to prosecution with increased penalties.

NRCA recognizes the need for improved enforcement of U.S. immigration laws. However, as a co-chair of the Essential Worker Immigration Coalition, NRCA strongly opposes the no-match rule and believes it is fundamentally flawed, would adversely affect employers and employees in the roofing industry, and would do little—if anything—to curtail illegal immigration.

One of the most serious problems presented by the rule is it places too much law-enforcement responsibility on employers. Additionally, the SSA database used to generate no-match letters is notoriously inaccurate.

A continuing battle

When DHS issued its original final rule in 2007 despite strong opposition from many business and labor organizations, NRCA joined other business group litigants in filing suit to block the rule's implementation. The lawsuit was based on DHS' failure to comply with the Regulatory Flexibility Act because it failed to conduct an economic impact analysis of the rule. In October 2007, U.S. District Court Judge Stephen Breyer ruled in favor of NRCA and the other plaintiffs and issued an injunction blocking the rule.

But former DHS Secretary Michael Chertoff and other agency officials were determined to see the rule implemented before they left office. In early 2008, DHS issued a supplemental proposed rule that attempted to address the issues underlying Breyer's injunction. However, the revised proposal did not contain any substantive changes from the original rule. DHS finalized this rule again in October 2008.

For the rule to become legally effective, DHS must convince Breyer to lift his injunction, and the government sought an expedited timeframe to attempt to resolve the case before the end of the Bush administration. However, in December 2008, Breyer rejected the government's arguments for expediting the case, thereby ensuring the litigation would not be resolved until after President Obama took office. A court hearing could be scheduled for sometime this spring or summer.

NRCA is working to ensure the Obama administration rescinds the no-match rule, and the Obama transition team gave indications it is willing to reconsider the issue. Capitol Hill sources believe the new DHS, led by former Arizona Gov. Janet Napolitano, will be willing to work constructively with Congress on immigration issues.

Victory in sight

It's been a long journey on the no-match rule, and it's not finished yet. But continued litigation should allow the issue to be resolved favorably. One remaining question is whether the litigants can continue generating the resources necessary to see this legal challenge through to the end, and NRCA and other business groups are working to make sure the effort doesn't come up short.

Duane L. Musser is NRCA's vice president of government relations.