DHS Issues Supplemental To No-Match Rule

On March 21st, 2008, DHS renewed its immigration enforcement drive by slightly altering the August 2007 Final Rule. The agency announced a "supplemental proposed rule" concerning the actions required of employers who receive "no-match" letters from the Social Security Administration . These August 2007 guidelines outline steps that the employer must follow in order to resolve the discrepancy described in the SSA “no-match” letter or the DHS discrepancy letter. Once an employer is in receipt of a SSA “no-match” letter, it has up to 90 days from the date of receipt to resolve the a SSA records discrepancy. If the employer cannot verify the employee's work eligibility through completion of a new I-9 form, the employer must decide whether to terminate the employee, or face the risk in any subsequent DHS enforcement action of being determined to have constructive knowledge and being penalized for the continuing employment of an unauthorized alien.

This rulemaking tries to address three issues cited in a decision of the U.S. District Court for the Northern District of California enjoining the August 2007 No-Match Rule. However, the proposal makes no substantive changes to the plan that the Federal Judge, Charles Breyer, estimated would have “severe irreparable harm to innocent workers and employers.” This unchanged Final Rule still leaves the employer facing possible wrongful termination or discrimination charges.