No-Match Letter Regulation is on Hold
Posted Sep 21, 2007
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A U.S. district court in Northern California issued a temporary restraining order on August 31, 2007, in the case of AFL-CIO et al v. Michael Chertoff et al, which is a lawsuit against the controversial "no-match" letter regulation issued by the U.S. Department of Homeland Security (DHS). A temporary restraining order prevents the DHS from implementing the regulation, pending a hearing on the matter.
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The U.S. Immigration and Customs Enforcement (ICE) issued an updated regulation on August 15, 2007, as part of the stepped-up worksite enforcement initiative. As MurthyDotCom and MurthyBulletin readers were informed in our August 17, 2007 article, Liability for Employers who Receive No-Match Letters, this was to go into effect on September 14, 2007.
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Court Stops Regulation Temporarily, Hearing to be Held
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The plaintiffs in this case are the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) together with other professional organizations. The defendants are DHS, the Social Security Administration (SSA), and their agents. The federal court determined that the plaintiffs "raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration." Therefore, the court issued an order, temporarily preventing the defendants from implementing the regulation. The court further ordered them to appear at a hearing scheduled for October 1, 2007, to explain their position in favor of the regulation. It is expected that the defendants will vigorously support their position.
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"No-Match" Regulation
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The "no-match" regulation describes the legal obligations of an employer who receives a no-match letter from the SSA, or a letter from the DHS, indicating that there is a discrepancy between the agency's records and I-9 employment eligibility documents. Such a discrepancy, or no-match, in records could be caused by the use of a false identity for employment authorization documents. There are other possible reasons, however, that information may not match and the generation of a letter could be prompted. The regulation also provides "safe harbor" procedures for an employer to follow in order to avoid various civil and criminal penalties in cases where the employer is deemed to have constructive knowledge that its employees are not authorized to work. See our MurthyBulletin article, Liability for Employers who Receive No-Match Letters, for more detail on the safe harbor provision.
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Conclusion
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This lawsuit will delay or modify the implementation of the no-match letter regulation, but it could ultimately still go into effect in some fashion. The SSA is concerned that a delay in implementation of this regulation will cause millions of dollars to be lost and delay SSA payments to eligible beneficiaries. Employers and their HR managers and other representatives are encouraged to educate themselves and prepare for these and other worksite enforcement actions, in anticipation of these regulations, if and when they are put into effect.