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DHS Issues Proposed Rule to Rescind2007 'No-Match' Regulation

Immigration Law Update

August 20, 2009

In August 2007, the Department of Homeland Security issued a final "no match" rule, setting out the steps for an employer to take in order to acquire a "safe harbor" under § 274A of the Immigration and Nationality Act (prohibiting the employment of unauthorized aliens) when in receipt of no-match letters from the Social Security Administration. The rule, set to take effect September 14, 2007, was never implemented because the U.S. District Court for the Northern District of California granted a motion for preliminary injunction, which placed the rule on indefinite hold. The rule would have affected approximately 8 million workers by providing employers with 90 days to reconcile mismatches between the employer's work records and Social Security Administration records. Employers unable to reconcile a mismatch within the 90-day period provided by the DHS would have to fire the employee in question or face fines of as much as $11,000 per employee. 
Recent Action
On July 9, 2009, the Department of Homeland Security announced its intention to initiate rulemaking proceedings to rescind the safe harbor rule, which would moot the California lawsuit. 
On August 19, 2009, DHS published a proposed rule rescinding the previous rule and its amendments. DHS noted that after further review, it had determined "to focus its enforcement efforts relating to the employment [of unauthorized] aliens...on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE) and other programs." To this end, DHS announced that rescinding the August 2007 no-match rule and the subsequent supplemental final rule "will better achieve DHS's regulatory and enforcement goals." The full text of DHS's proposed rule is available in the August 19, 2009 Federal Register at pp. 41801-41805, available here or online at http://edocket.access.gpo.gov/2009/E9-19826.htm.  The comment period is currently set to end on September 18, 2009.