DHS "No-Match" Rule is No Longer in Effect (For Now)

A sigh of relief flooded across the agricultural and hospitality industries on October 10th as a Federal Judge stopped the Department of Homeland Security from using Social Security records for immigration enforcement. A U.S. District Court Judge for the Northern District of California issued a preliminary injunction prohibiting DHS from implementing the rule entitled "Safe Harbor Procedures for Employers Who Receive a No-Match Letter."

This rule was set to go into effect in September 2007 and would have changed an innocuous administrative tool into an enforcement tool to uncover undocumented workers. Employers receiving letters from the Social Security Administration informing them that the name and social security number provided by the employer did not match Social Security records, would have been required to resolve the discrepancy within 93 days. If the employer could not resolve the discrepancy within that period, they would have been required to terminate the employee. Under the proposed regulation, the employer had two choices: (1) Terminate the employee and risk lawsuits by employees who believe they were unfairly or discriminatorily fired, or (2) Continue the employment and risk severe civil and criminal sanctions from DHS. If the employer ignored a "no-match" letter, they would have been in violation of federal immigration laws.

In his decision, Judge Breyer stated that the "balance of hardships tips sharply in plaintiff's favor because altering the status quo would subject employer's to greater compliance costs and employees to an increased risk of termination, while imposing significantly less burdens on the government." The plaintiffs in this case are a consortium of unions and business groups, including the American Federation of Labor.

With the injunction in place, the law returns to the status quo. "No-Match" letters will still be mailed to employers but they will not include the DHS guidance letter. The letters will continue to be used to inform employers that the social security number submitted on the employee's W-2 form does not match SSA records and the employee is not receiving credit for their earnings. Employees who are informed of the mismatch do not need to take steps to correct the discrepancy if they choose not to and employers should not fire, or make threats to fire, their employees because of the letter. Employees should not walk off the job is they are told of the mismatch.

The sigh of relief may be short lived because the injunction is temporary and the rule could still go into effect at a later date. This injunction is binding, however, until the case goes to trial, which is likely months away. Our office will continue to monitor this case and provide updates as they arise. If you have any questions regarding this rule, or other immigration concerns, please call us. 612-321-9800.