DHS Supplemental Proposed Rule on No-Match Letters

DHS published this supplementary proposed rule to better outline the steps an employer may take in response to receiving a letter from the Social Security Administration indicating that an employee’s name does not match the social security number on file.

Specifically, DHS is responding to three aspects of the 2007 final rule that were identified in an injunction granted in the case AFL-CIO v. Chertoff, D.E. 135 (N.D.Cal. Oct. 10, 2007):

1. Whether DHS had supplied a reasoned analysis to justify the agency’s change in position — that a no-match letter from the SSA may be sufficient, by itself, to put an employer on notice that workers referenced in a no-match letter may not be authorized to work;
2. Whether DHS had exceeded its authority by creating an exception under the antidiscrimination provisions of the Immigration and Nationality Act (INA) for employers who follow the safe-harbor rule; and
3. Whether DHS had violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis.

The supplemental proposed rule provides the following additional guidance to the 2007 final rule, whose implementation was delayed by the court injunction:

• Defines “prompt” notification that employers must provide to workers listed in a no-match letter as being immediately upon receipt of the no-match letter or within 5 business days of the employer completing the internal review;
• The rule does not apply to workers hired before November 6, 1986;
• The rule does not require employers to make or retain any new documentation or records should employers choose to follow the “safe-harbor” steps laid out in the rule.