Wednesday, July 23, 2008, marked a new development in the federal litigation challenging the No-Match letter rule announced in August 2007. For background on the No-Match litigation see the Jordan Ramis PC Business Alert, Employer Beware: Immigration Update. On the 23rd, the Department of Homeland Security ("DHS") filed an unopposed motion to vacate the status conference scheduled for August 1, 2008, in the No-Match lawsuit. The DHS requested that the court reset a status conference on or after September 12, 2008. Since the motion is unopposed (that means the other party has agreed), it is expected that the court will grant the motion and enter an order setting a new status conference date.
This development is significant because it further delays the implementation of the proposed No-Match rule. Such delay pushes the date of implementation ever closer to 2009, meaning that either Congress or a new presidential administration may step in to address this situation before the No-Match rule becomes the law of the land.
In its motion to vacate the hearing, the DHS states that it is still "in the process of evaluating the comments (from the public comment period for the supplemental rule announced in March 2008) and finalizing this supplemental rulemaking." It is also possible that the DHS wants the period for public comment on the proposed rule requiring federal contractors to enroll in E-Verify to close so it may also announce that final rule at the same time. The public comment period for the federal contractors' rule ends on August 12, 2008. For background on the federal contractors' rule, see the Jordan Ramis PC Business Alert,Upping the Ante on Immigration Enforcement Against Federal Contractors.
Based on information obtained from various sources, it appears that the DHS will be announcing its "final" rule in the next three to four weeks. If that is true, then it is expected that the DHS will file a motion to vacate the preliminary injunction sometime in late August 2008 so that the plaintiffs will have time to file a response prior to any new hearing date the court sets on or after September 12, 2008. Based on this timeline the earliest date for implementation of the No-Match letter rule would be late September or early October. It is certainly conceivable, however, that this delay could postpone implementation into 2009.
Regardless of whether or when the No-Match and federal contractor rules are ultimately implemented, all businesses should take precautionary steps to ensure that they understand their duties and obligations under the immigration laws. Such steps include:
- Reviewing I-9 (Employment Eligibility and Verification) procedures to ensure that the company, its agents, and employees understand and act in compliance with federal law.
- Conducting annual audits and training in proper I-9 procedures to avoid future criminal and civil liability.
- Where necessary, seeking assistance from competent legal counsel in the development of policies and procedures, auditing of I-9 records, and training of employees.
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