On March 21, 2008, the U.S. Department of Homeland Security (DHS) announced a supplemental proposed rule and a "clarification" to the "no match" rule first published by DHS in August 2007. Since September 2007, the enforcement of the rule has been enjoined by a court order. DHS is both appealing the court order and has published this supplemental rule with clarifications in hopes of addressing the concerns raised by the court in issuing the injunction.

The supplemental rule makes virtually no changes to the substance of the rule published in August 2007, but provides additional justifications for why DHS believes the rule is necessary and authorized by the law. Employers would still be required to resolve a discrepancy in Security Records for an employee within 90 days of receipt of a "no match" letter from the Social Security Administration (SSA). If the discrepancy is not resolved within that time frame, the employer is left with no realistic option but to fire the employee, or risk being found to be a knowing employer of an unauthorized worker.

It is unclear at this time whether this revised rule will address the concerns raised by the court. If the court finds that DHS has resolved the problems with the rule that led to the injunction, the court could lift the stay and the rule would go into effect. When the court might issue this decision is also unknown.

Background:  In August 2007, DHS published a regulation that was designed to limit the ability of employers to continue to employ unauthorized workers. The regulation included a plan by both the Social Security Administration (SSA) and DHS to issue "no-match" letters to employers whose employee's name and social security number does not match agency records, or where the employee's immigration documentation was not assigned to that employee. Under the proposed regulations, employers would be required to attempt to resolve any discrepancies within 90 days. If they were unable to do so, the employer would then have to terminate the impacted employee or risk liability for continued employment of an unauthorized worker. The "no match" letters were scheduled to be issued on September 14, 2007, but were put on hold after labor groups and immigrant activists filed a federal lawsuit and requested an injunction. The court issued the injunction, and implementation of the no match regulations has been put on hold pending the outcome of the lawsuit.

J&H will continue to monitor the status of the no match regulations and the lawsuit, and update clients as news becomes available.

© 1999-2012, Jackson & Hertogs - All rights reserved