U.S. Government Issues Supplemental Proposed Rule In Attempt to Remove Injunction Against Social Security “No-Match” Rule

May 2008Newsletters Legally Speaking

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On March 26, 2008, the Department of Homeland Security (DHS) issued a Supplemental Proposed Rule on the heels of its August 15, 2007, “Safe-Harbor Procedures for Employers Who Receive a Mismatch Letter” Rule (Mismatch Rule). The Supplemental Rule was issued in response to the concerns raised by federal Judge Breyer of the U.S. District Court for the Northern District of California. Judge Beyer enjoined the original Mismatch Rule on October 10, 2007, preventing its implementation anywhere in the nation. The Mismatch Rule created strict procedures for employers to follow in response to a no-match letter from the Social Security Administration (SSA) or Immigration and Customs Enforcement (ICE). Finding that it would cause irreparable harm to both innocent workers and employers, the court’s concerns centered around the possibility that the new procedures could result in widespread terminations of lawfully employed workers due to known errors in SSA’s records, and the threat of criminal and civil liability to employers who fail to follow the “safe harbor” procedures.

DHS Secretary Michael Chertoff had previously stated that it was DHS’s intention to revise the Mismatch Rule to make it acceptable to the court, while simultaneously trying to overturn the court’s injunction through an appeal to obtain a resolution as quickly as possible. The Supplemental Proposed Rule does not change the Mismatch Rule’s safe-harbor provisions or contain any other substantive changes to the rule as originally written. In fact, DHS states that it is reissuing the 2007 final rule “without change.” DHS’s appeal of the preliminary injunction remains pending before the court.

Although the Mismatch Rule remains the same, the Supplemental Rule claims to clarify three aspects. First, the Supplemental Rule 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 five business days of the employer completing the internal review. Second, it confirms that the Mismatch and Supplemental Rules do not apply to workers hired before November 6, 1986 (the date upon which IRCA/I-9 procedures took effect). Third, it states that neither the original Mismatch nor the Supplemental Rules require employers to make or retain any new documentation or records should employers choose to follow the “safe-harbor” steps laid out in the original final rule.

For more information on the Mismatch Rule, please refer to Fox Rothschild’s August 2007 Alert describing the Rule here: alert_aug07_immigration.pdf (pdf file); and a subsequent October 2007 Alert detailing the effect of the temporary restraining order (now the preliminary injunction) and continued enforcement activities here: alert_oct07_prelimInjunctionBlocks.pdf (pdf file).

Recent trends in enforcement indicate that the Federal Government continues to aggressively pursue its increasingly stringent worksite enforcement efforts. Accordingly, it is advisable for employers to perform an internal “check up” to examine compliance levels, particularly since identifying and correcting problems can currently be the basis of a “good faith” defense in an investigation. Fox Rothschild recommends a strategic, private, internal audit of I-9s, as well as an examination of hiring practices, policies, and procedures prior to the implementation of new, possibly complex and strict procedures.