October 6, 2009
A DHS final rule rescinds the "no-match" rule, effective November 6, 2009. In the preamble to the rescission rule, DHS explained the administration’s basis for rescinding the no-match rule: "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."
August 19, 2009
On August 19, 2009, DHS published a proposed rule to rescind the no-match letter rule, stating that after further consideration, rather than pursue the no-match letter route, it would instead "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." Comments on the proposed rescission are due by September 18, 2009.
June 12, 2009
On June 11, 2009, the Government filed a motion for a third extension of time to submit its responses, "for thirty (30) days, to and until July 10, 2009."
January 12, 2009
In a status conference held on December 5, 2008, the court set a briefing schedule that will, according to a Bureau of National affairs analysis, "leave the case unresolved until at least March" 2009.
November 6, 2008
DHS filed a motion to vacate the court's preliminary injunction and asking for summary judgement in favor of DHS.
October 28, 2008
On October 28, 2008, DHS published a "Supplemental Final Rule" modifying its prior final rule on employer response to no-match letters from the Social Security Administration. Implementation of that prior final rule had been enjoined by the court. This rule notice provides a revised analysis in the supplemental information section, by which DHS hopes to address the court's concerns that formed the basis of the injunction order. The notice also states that it "reaffirms the text of the final rule issued on August 15, 2007, 72 FR 45611," and makes one minor correction to an erroneous citation in the prior final rule language.
The notice states that the supplemental final rule is effective as of the date of its publication, October 28, 2008. However, the prior final rule is still in litigation, and the prior preliminary injunction remains in effect until lifted by the judge in the case. Referring to its new analysis in the supplemental final rule, DHS Secretary Michael Chertoff stated that "We will be notifying the judge that we have taken action to address the courts' concerns on the original rule, and we will ask the court to lift the injunction, and let us proceed with implementation of the rule immediately." The litigation parties had been scheduled for a hearing on October 31, 2008, but DHS and the plaintiff parties have now agreed to reschedule that hearing to November 21, 2008.
October 23, 2008
DHS made public an advance copy of a supplemental final rule that would implement the no-match provisions. The litigation against the rule continues, but DHS is hoping that this final rule and the supplemental information contained therein would address what the court had criticized in the original rule. DHS Secretary Michael Chertoff stated that "We will be notifying the judge that we have taken action to address the courts' concerns on the original rule, and we will ask the court to lift the injunction, and let us proceed with implementation of the rule immediately," and that he hopes the rule "will be published in the Federal Register in the coming weeks."
March 26, 2008
On March 26, 2008, DHS published a "supplemental proposed rule" meant to respond to three aspects of the 2007 final rule that were identified in the injunction granted in the case AFL-CIO v. Chertoff, D.E. 135 (N.D.Cal. Oct. 10, 2007). Public comments on the proposed rule were due by April 25, 2008.
November 27, 2007
On November 23, 2007, the court granted a DHS motion to stay the proceedings until March 31, 2008, during which time DHS states that it will engage in a new rulemaking effort to address the court's concerns with the rule.
October 10, 2007
On October 10, 2007, the U.S. District Court for the Northern District of California granted a preliminary injunction(AFL-CIO v. Chertoff,
N.D. Cal., No. C 07-04472 CRB). Although a preliminary injunction is not a final adjudication of the merits of the claims, it does serve to prevent SSA and DHS from implementing the no-match rule until the issues addressed in the injunction order are resolved in a trial on the merits.
The injunction order does not prevent the Social Security Administration from sending out the kind of no-match letters that it had been sending out for over a decade before this rule. To do so, SSA would have to remove DHS's no-match insert and all language related to the no-match rule from the letter.
October 2, 2007
The ACLU and the National Immigration Law Center reported that on October 1, 2007, the U.S. District Court for the Northern District of California extended for 10 days the temporary restraining order that prevents DHS from enforcing its "no-match" rule, and that the order also "stops the Social Security Administration (SSA) from beginning to send notices to approximately 140,000 employers across the country notifying them of the new rule, which would impact approximately eight million workers."
September 6, 2007
On August 31, 2007, the U.S. District Court for the Northern District of California issued a temporary restraining order (TRO) preventing the Department of Homeland Security from implementing this rule. The AFL-CIO and others had sued DHS, arguing that the rule was "inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration." The District Court agreed that the plaintiffs, a consortium of unions and business groups, raised legitimate questions, and the court issued the TRO. The TRO set a hearing date of October 1, 2007, at which time the Government must show why a preliminary injunction should not be issued.
Summary of the No-match Rule
This rule will require employers to take timely steps after receiving a "no-match" letter from the Social Security Administration (SSA) or the Department of Homeland Security (DHS). An employer who takes the steps will enjoy "safe harbor" against future allegations that the employer had "constructive knowledge" that the employee referred to in the letter was not authorized to work in the United States.
Employers can receive an "Employer Correction Request" letter (commonly known as a "no-match" letter) from SSA if the combination of employee name and Social Security Number (SSN) reported to SSA by the employer do not match SSA records. U.S. Immigration and Customs Enforcement (ICE) can send a similar "Notice of Suspect Documents" letter to an employer during an I-9 audit when there is a discrepancy between information or documents retained by the employer and information in DHS records.
The rule specifies that an employer should take the following steps after receiving such a letter:
Within 30 days after receiving the letter, the employer should:
- Promptly check its records to determine whether a simple typographical or similar error is the cause of the discrepancy. If there is such an error, the employer would correct its records, and inform the relevant agencies that the employer's records now match the agencies' records, making a record of the manner, date, and time of the verification and correction.
- If the record check does not resolve the discrepancy, the employer must ask the employee to confirm that the employer's records are correct. If the employee confirms that the employer's records are correct, the employer must ask the employee to pursue and resolve the issue with the relevant government agency.
A discrepancy will be considered "resolved" only if the employer verifies with SSA or DHS that the employee's name matches in SSA's records the number assigned to that name, or, in the case of a DHS discrepancy, the employer verifies with DHS that the immigration status document or employment authorization document used for I-9 verification was assigned by DHS to the employee.
If the discrepancy is not resolved within 90 days of the employer's receipt of the SSA or DHS no-match letter, the employer and the employee must complete a new Form I-9, using the same procedures used for newly hired employees, except that both section 1 and section 2 of Form I-9 would have to be completed within 93 days of receipt of the no-match letter. In this reverification process, no document containing the SSN or alien number that is the subject of the no-match letter (nor a receipt for the replacement of such a document) may be used to establish employment authorization or identity, and no document without a photograph may be used to establish identity.
If the discrepancy cannot be resolved, then the employer must choose between:
- Terminating the employee, or
- Facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien, which may subject the employer to penalties described in 8 C.F.R. 274a.10.
These procedures insulate an employer only from a finding of constructive knowledge that an employee was an unauthorized alien. An employer with actual knowledge that an employee was an unauthorized alien cannot avoid liability by following these procedures.