Department of Homeland Security answers court ruling with proposed regulations for employers on immigration and “no match” letters

The Department of Homeland Security (DHS) is proposing to amend its regulations that provide a "safe harbor" from liability under the Immigration and Nationality Act for employers who follow certain procedures after receiving a "no-match letter" from the Social Security Administration (SSA). A no-match letter indicates a mismatch between the name and social security number the employee provided the employer and the information in SSA's database. A final rule was published on August 15, 2007. However, in a decision reported on at the second link below, a U.S. district court in California issued a preliminary injunction against DHS questioning whether the department had: (1) supplied a reasoned analysis to justify a change in its position that a no-match letter alone may impart constructive knowledge that an employee may not be work-authorized; (2) exceeded its authority by interpreting the anti-discrimination provisions of the Immigration Reform and Control Act of 1986; and (3) violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis. DHS proposes this supplemental rule to address the above issues and have the injunction dissolved. First, DHS attempts to offer the "reasoned analysis" for its change in policy: that, among other purposes, the final rule was intended to eliminate ambiguity regarding an employer's responsibility upon receipt of a no-match letter. Second, DHS rescinds statements in the preamble to the final rule describing employers' obligations under anti-discrimination law or discussing the potential for anti-discrimination liability for following the safe-harbor procedures. Third, DHS provides an initial regulatory flexibility analysis. Comments were due April 25, 2008.

73 Fed. Reg. 15,944 (Mar. 26, 2008)
DHS supplemental proposed rule
NSBA School Law pages on district court ruling