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Controversial "No-Match" Rule Comes to an End

Immigration Law Update

October 7, 2009

The Department of Homeland Security is rescinding its controversial "no-match" regulation targeting employers with undocumented workers.

Under the no-match rule—also called the safe harbor rule—employers would have been required to take certain measures after receiving a no-match letter from the Social Security Administration, or face liability.

The Bush administration originally issued the no-match rule in 2007. Soon thereafter, the rule was challenged in the U.S. District Court for the Northern District of California, where its implementation was preliminarily prohibited.

Reflecting the change in presidential administrations, DHS announced its intention to rescind the rule in July 2009. In August 2009, the DHS issued a proposed rule rescinding the no-match regulation, and in the final rule, scheduled for publication in the Federal Register on October 7, said it intended to adopt the proposed rule without changes.

"After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs," the department said. This final rule will be effective November 7, 2009. 

As of September 2009, more than 155,000 employers had signed a Memorandum of Understanding with DHS to participate in E-Verify, representing more than 500,000 hiring sites. In fiscal year (FY) 2009, employers queried E-Verify nearly 8.6 million times. The Administration and DHS support the expansion of E-Verify and have taken steps to encourage use of E-Verify, including ensuring that federal contractors use E-Verify to conduct employment eligibility verification.