Immigration Law

October 2008 Supplemental Final Rule on ?No-Match? Letters

By John Combs

On October 23, 2008, the U.S. Department of Homeland Security (DHS) issued a supplemental final rule concerning the "safe harbor? protection available to employers after they receive a letter from the Social Security Administration (SSA) stating that the information submitted for an employee does not match SSA records (otherwise known as an SSA ?no-match? letter). The supplemental final rule (which expands upon a March 2008 proposed rule) included additional legal analysis and a Final Regulatory Flexibility Analysis, but ultimately re-issued the August 2007 no-match final rule ?without substantive change.? 

The August 2007 final rule stated that if an employer follows the ?safe harbor? procedures set forth in the rule, DHS will not use the no-match letter as evidence that the employer has ?constructive knowledge? that it has hired undocumented workers. The August 2007 rule was scheduled to go into effect on September 14, 2007, but on October 10, 2007, it was preliminarily enjoined by the U.S. District Court for the Northern District of California. The granting of the preliminary injunction prohibited DHS from implementing the final no-match rule until the court makes a final ruling, after trial, on whether or not the rule is legal. This means that the DHS rule still is not in effect. The court order applies to the entire country, not just northern California. The rule is blocked indefinitely until the court issues a final decision on the rule.

The preliminary injunction remains in place unless and until the court decides to dissolve it. With the issuance of the supplemental final rule DHS has said it plans to go back to the court to ask the court to dissolve the injunction. Currently however, the rule remains blocked until the court either decides to dissolve the injunction or decides whether or not the rule is legal.

Full post as published by Immigration Law for Employers on October 24, 2008 (boomark / email).