DHS Issues New No-Match Supplemental Proposed Rule for Employers  Posted Apr 11, 2008
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The U.S. Department of Homeland Security (DHS) issued a press release on March 21, 2008 announcing a supplemental proposed rule (PDF 224KB) on Social Security Administration (SSA) no-match letters. A no-match letter is a letter from the Social Security Administration that is issued when the information on an employee is inconsistent with the SSA's records. The controversy in this area swirls around the concept of whether an employer has constructive knowledge that an employee is not authorized to work once the employer has received a no-match letter. The supplemental proposed rule is an attempt to address three issues that caused a federal court to halt the implementation of the initial version of the rule. The proposed rule is summarized here to guide U.S. employers in understanding their obligations under the rule.
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Injunction Prevented Implementation of
DHS Regulation Since Aug 2007
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As regular MurthyDotCom and MurthyBulletin readers may recall from our September 21, 2007 article, No-Match Letter Regulation is on Hold, the DHS was prevented from operating under the original no-match regulation issued August 15, 2007 by a U.S. District Court injunction. This court order enjoined the DHS from implementing the regulation.
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DHS Rule Attempts to Address Court's Concerns
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The DHS press release indicates that this supplemental proposed rule was developed in response to the U.S. District Court's restraining order and addresses the three issues discussed in the restraining order. One of the concerns raised by the court was whether the change in policy contained in the rule was reasoned and justified, that is, whether a no-match letter is, in and of itself, sufficient to put an employer on notice that a worker is not authorized to work. (There could be many reasons for a no-match letter that are not related to work authorization.)
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The other two reasons involve the authority of the DHS to create exceptions under the safe harbor provisions and whether the DHS complied with the Regulatory Flexibility Act. DHS claims that this new rule does not impose any new legal obligations on employers, but provides safe harbor or legal protection for employers who follow the procedures created by the no-match rule. The rule gives an employer 90 days to rectify the no-match issue before various civil and criminal penalties can be imposed if constructive knowledge of unauthorized employment is found. See our August 17, 2007 article, Liability for Employers who Receive No-Match Letters, available on MurthyDotCom, for more detail on these provisions and penalties.
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Conclusion
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Critics of the supplemental proposed rule state that it does not make any substantive changes. A summary of the opposition to the proposed rule is available through the National Immigration Law Center (PDF 224KB). If this DHS supplemental proposed rule survives judicial review in the courts, U.S. employers must be prepared to receive no-match letters and respond promptly to DHS or SSA. Employers, their HR managers, and other representatives are encouraged to educate themselves and prepare for these and other worksite enforcement actions if and when they are put into effect, as the cost of violation is onerous on most businesses.