DHS Issues Proposed Rule Rescinding No-Match Rule

Posted on August 20, 2009 by Jay Sumner

The Department of Homeland Security (DHS) has issued a proposed rule (pdf) rescinding regulations instituting safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country. The No-Match rule – which has been enjoined by a lawsuit filed in 2007 and therefore never implemented – provides that No-Match letters be accompanied by a set of procedures for employers to follow to address the flagged identification discrepancies and avoid a finding that they have constructive knowledge of a worker’s illegal status and thus civil and criminal liability under the Immigration Reform and Control Act of 1986. Shortly after this rule was introduced, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a lawsuit challenging, among other things, the sufficiency of the No-Match letter to put an employer on notice of a potential illegal hire. A U.S. District Court in California granted the plaintiff’s preliminary injunction blocking the rule’s enforcement. In 2008, the DHS issued a supplemental final rule clarifying certain aspects of the No-Match rule, but did not change the safe-harbor procedures. Neither the final No-Match rule nor the supplemental final rule have been enforced.

Following her swearing in as Secretary of Homeland Security on January 21, Janet Napolitano ordered a review of existing programs and regulations, including the No-Match rule. As a result of this review, the DHS determined that improving E-Verify and other DHS programs would better achieve the goal of reducing illegal employment, and that rescinding the No-Match Rule was more in line with the DHS’s regulatory and enforcement goals and would allow the department to divert its resources to other programs.

The DHS announced its intent to rescind the No-Match rule on July 8.  The next day, the Senate approved an amendment (S. AMDT. 1375) to the DHS Appropriations Bill (H.R. 2892) that prohibits funds from being used to “amend, rewrite, change or delay the implementation” of the No-Match rule. However, the 2010 budget does not take effect until October 1, so it is likely that no additional funds will be needed to implement a final rule rescinding the No-Match regulation.

Comments on this proposed rule must be submitted by September 18, 2009. These comments need to include the identification docket number: ICEB 2006-0004, and may be sent by mail to National Program Manager Charles McClain, U.S. Immigration and Customs Enforcement, Office of Investigations--MS 5112, 500 12th Street, SW., Washington, DC 20536, or electronically via the Federal eRulemaking Portal at http://www.regulations.gov.
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Senate Approves Amendment to Appropriations Bill that Prevents DHS from Rescinding "No-Match" Rule

Posted on July 14, 2009 by Jay Sumner

Last week the Senate voted to accept an amendment (S. AMDT. 1375) to the Department of Homeland Security’s (DHS) Appropriations Bill (H.R. 2892) that would prevent the DHS from revoking its “No-Match” Rule. This rule – which was blocked by court order and never implemented – established procedures that employers could follow in the event they receive notices from the Social Security Administration (SSA) or DHS informing them that their employees’ names and Social Security numbers listed on W-2 earnings reports do not match SSA records. According to Sen. David Vitter (R-La.), who introduced the amendment at issue, the No-Match rule “provided clear guidance on the appropriate responsibility of the employer, the appropriate due diligence the employer should undertake if they receive a letter from the Social Security Administration informing them there is not a proper match under those records,” and is therefore necessary to address illegal employment and clarify an employer’s responsibility in the event they are put on notice that they might be employing an illegal alien.

The DHS, on the other hand, has faulted this process on the grounds that the No-Match letters are sent months or even a year after the information is initially provided. In addition, according to the DHS, identification information is often called into question due to typographical errors or unreported name changes. On July 8, the DHS announced its intent to rescind the 2007 rule, and instead support E-Verify, which the agency claims will result in more timely and accurate No-Match letters.

Sen. Vitter’s amendment would essentially block the DHS from acting on this rule by prohibiting funds provided in the appropriations bill from being used to rescind the regulation. The amendment would also prevent further delays in implementing the no-match rule, which has been blocked by litigation filed by both organized labor and business groups.
 

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