October 24, 2008
On October 23, 2008 the Department of Homeland Security (“DHS”) issued a supplemental final “no-match” rule. This supplemental rule essentially republishes the original rule issued in August 2007. The rule contains specific instructions on how employers are to respond to “No-Match” letters received from the Social Security Administration and penalties for failing to comply with the procedure. Compliance with the regulation would have given employers a “safe harbor” from prosecution for immigration violations.
When the original rule was published it was met by public outcry and lawsuits challenging its validity. The lawsuits were consolidated in the Northern District of California before Judge Charles Breyer. Judge Breyer issued of an injunction, preventing the implementation of the regulation. Following the injunction, Social Security temporarily halted the issuance of “No-Match” letters.
In March 2008, Judge Breyer issued a stay on the litigation allowing DHS an opportunity to re-fashion the rule to address issues raised in the litigation.
On March 21, 2008 , DHS re-published the “No-Match” rule as a proposed supplemental final rule with a comment period ending on August 25, 2008 . DHS received nearly 3,000 comments to the proposed rule.
The only substantive change in the regulation addressed a statement in the preamble of the original rule indicating that uniform application of the “No-Match” rule would have protected employers from claims of unlawful discrimination under the Immigration Reform and Control Act of 1986 (“IRCA”). DHS agreed that such claims are handled by the Department of Justice, Office of Special Counsel and are therefore outside of DHS’s jurisdiction, thus eliminating one element of the so called “safe harbor”.
In the DHS press release on the rule, DHS Secretary Michael Chertoff asserted that, "The No-Match Rule, along with E-Verify, will increasingly make the pleas of ignorance from businesses that seek to exploit illegal labor ring hollow, and equip their responsible competitors with the tools they need to hire and maintain a legal workforce."
The final supplemental rule, ordinarily effective upon publication in the Federal Register, can not be implemented until Judge Breyer lifts the injunction.
Thelen LLP will continue to monitor the developments and possible implementation of the rule as they occur.
The DHS press release and text of the final supplemental regulation can be found at: http://www.dhs.gov/xnews/releases/pr_1224771455239.shtm
For more information please contact:
Frederick Warren Strasser
212 603 8903
fstrasser@thelen.com
Jo Anne C. Adlerstein
212 603 2388
jadlerstein@thelen.com
©2008 by Thelen LLP. This article is published as an information service for clients and friends. Please recognize that the information is general in nature and must not be relied upon as legal advice. We would be pleased to discuss the information in this article, and its application to your specific situation, in greater detail. We welcome your comments and suggestions.
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