Update on the DHS Regulations Regarding “No-Match” Letters
March 5, 2008
Kelli A. Fitzgerald- Chicago
In our October 20, 2007 alert, we explained the Department of Homeland Security’s (DHS’s) final regulations setting forth employers’ responsibilities after receiving a “no-match” letter from the Social Security Administration (SSA) or a Notice of Suspect Documents from the DHS, which had been scheduled to go into effect on September 14, 2007. Because of a court order, the regulations did not go into effect. Now, in connection with the litigation, the DHS has until March of 2008 to adopt revised regulations regarding employers’ responsibilities upon receipt of “no-match” letters.
Background on the DHS Regulations
As we discussed previously, the DHS’s final regulations were intended to reduce the employment of illegal aliens in the United States. The Immigration and Nationality Act (INA) prohibits an employer from knowingly continuing to employ an alien who lacks the proper authorization to work in the United States. 8 USC § 1324.
When the SSA discovers that the name and social security number provided by an employer do not match the SSA’s records for that name and number, the SSA may send a letter informing the employer about the discrepancy. This is referred to as a “no-match” letter. Similarly, the DHS may send written notification called a “Notice of Suspect Documents” stating that the employment authorization document provided by the employee to complete Form I-9 does not match the DHS’s records for that individual.
Prior to August 15, 2007, the SSA had treated “no-match” letters as an informational tool for the employer, not a means to enforce the INA. Under the DHS regulations, however, receipt of a no-match letter or Notice of Suspect Documents could result in a finding that the employer knew it was employing an alien who lacks the proper work authorization and could result in penalties under the INA.
The regulations included “safe harbor” procedures that an employer could follow to avoid liability. The proposed procedures would allow an employer 30 days to determine if the no-match resulted from an error in its own records. Thereafter, the employee would have 60 days to resolve the discrepancy with the SSA. The procedures required the employer to terminate an employee if the discrepancy could not be resolved within the time period described in the regulations.
The SSA had intended to mail no-match letters to approximately 140,000 employers containing warnings that the failure to follow the safe harbor procedures could lead to sanctions.
Plaintiffs File Suit Seeking to Enjoin the New Regulations
Shortly after the DHS published the new regulations, a group of unions and immigration groups, together with the ACLU, filed suit seeking to enjoin the implementation of the regulations. They argued that the regulations exceeded the authority of the DHS and the SSA and would cause significant harm to legal workers. The plaintiffs argued that the SSA database is full of errors, that many legal workers would be wrongly flagged as no matches, and that many workers would be unable to resolve the discrepancy within the time allotted by the regulations, resulting in the firing of a substantial number of legal workers.
On August 31, 2007, Judge Charles Breyer of the U.S. District Court for the Northern District of California halted implementation of the new DHS regulations and scheduled a hearing for October 10, 2007, to decide the motion for a preliminary injunction against the implementation of the SSA regulations. (AFL-CIO v. Chertoff, N.D. Cal., No. 07-4472, order 8/31/07).
On October 10, 2007, Judge Breyer, stating that the “balance of hardships tips sharply in plaintiffs’ favor,” granted the preliminary injunction and blocked the SSA from sending 140,000 letters to employers covering approximately 8 million workers.
On December 4, 2007 the DHS notified Judge Breyer of its intent to appeal the judge’s decision to the U.S. Court of Appeals for the Ninth Circuit. Finally, on December 14, 2007, Judge Breyer agreed to stay proceedings in the lawsuit to enable the DHS to develop and amend regulations regarding the notification that will accompany no-match letters. The DHS has until March 2008 to revise the regulations.
Thus, employers currently have no obligation to comply with the new DHS “no-match” regulations. We will keep you informed as to further developments concerning this issue.
For more information, email Kelli A. Fitzgerald at kelli.fitzgerald@hklaw.com or call toll free, 1.888.688.8500.