November 13, 2008

No-Match Rule Implementation Delayed Until 2009


Fall 2008

Recent court activity has resulted in yet another likely delay in the implementing the no-match rule. It will now be sometime next year, probably in the first quarter of the year, before the Court rules on theno-match letter lawsuit. Until that time DHS may not implement theno-match rule.

On Thursday, November 6, 2008, the Department of Homeland Security ("DHS") filed its Motion to Vacate the Preliminary Injunction and Motion for Summary Judgment in the no-match letter lawsuit. The filing of these motions was expected and the motion is noticed for a hearing on December 12, 2008.

DHS also filed a motion to withdraw its appeal of the Court's preliminary injunction order with the Ninth Circuit Court of Appeals. The purpose of withdrawing the appeal is to remove any uncertainty regarding the Court's jurisdiction to consider the motions filed by DHS. The Court of Appeals has not yet ruled on this motion.

On Tuesday, November 11, 2008, the consortium of unions and business groups ("Plaintiffs") filed a motion to vacate the noticed hearing set for December 12, 2008. The Plaintiffs asked the Court to use a status conference postponed from November 21, 2008 to December 5, 2008, to "set a reasonable briefing and hearing schedule on cross-motions for summary judgment so all the issues can be briefed and this case can be resolved on the merits with a final judgment." The Court granted this motion on November 12, 2008 and the parties will now meet for a December 5, 2008 status conference. The Court's order stated that "the Court will reset the briefing schedule for Defendants' [DHS] pending motions."

There were no surprises or new information contained in DHS's motions and memorandums in support of the motions. The DHS motions focused on the three issues found by the Court to support the issuance of the preliminary injunction. These were:

  1. Whether DHS had changed its position on the legal significance of no-match letters, without an adequate explanation;
  2. Whether DHS exceeded its authority, and encroached on the authority of the Department of Justice ("DOJ"), by interpreting the Immigration Reform and Control Act's ("IRCA") anti-discrimination provisions; and
  3. Whether DHS violated the Regulatory Flexibility Act ("RFA") when it determined that it was not required to conduct a regulatory flexibility analysis.

In addressing the first question, DHS asserted that the Supplemental Final Rule, published in the Federal Register on October 28, 2008, "enunciated four principles that form the basis of DHS's view of the relevance of no-match letters to enforcement of immigration laws":

  1. Social Security Administration ("SSA") no-match letters do not, by themselves, establish that an employee is unauthorized;
  2. There are both innocent and non-innocent reasons for no-match letters;
  3. An employer may not safely ignore SSA no-match letters; and
  4. An employer must be aware of and comply with the anti-discrimination provisions of the Immigration and Nationality Act ("INA").

DHS also asserted that the Supplemental Final Rule set forth "the most significant reasons for the [DHS] Secretary's decision to promulgate the Safe Harbor Rule":

  1. The need to resolve the ambiguity and confusion among employers regarding their obligations under the INA following receipt of an SSA no-match letter;
  2. The growing evidence and consensus within and outside government that SSN no-matches are a legitimate indicator of possible illegal work by unauthorized aliens;
  3. DHS's view that SSA's criteria for sending employee no-match letters effectively focuses those letters on employers that have potential significant problems with their employees' work authorization; and
  4. The established legal principle that employers may be found to have knowingly employed unauthorized alien workers in violation of INA Section 274A based on a constructive knowledge theory.

DHS concluded that the "Safe Harbor Rule represents a reasonable approach to the use of no-match letters in immigration law enforcement." DHS asserted that the "Safe Harbor Rule is not arbitrary and capricious or otherwise in violation of the Administrative Procedures Act." For this reason, DHS stated that the Court should grant its motion to vacate the preliminary injunction and grant its motion for summary judgment.

In addressing the second question, DHS stated that in its Supplemental Final Rule it "expressly recognized the jurisdiction of DOJ over enforcement of the anti-discrimination provisions of IRCA." For this reason, DHS stated in the Supplemental Final Rule that "DHS rescinds the statements in the preamble of the August 2007 Final Rule discussing the potential for anti-discrimination liability faced by employers that follow the safe harbor procedures set forth in the August 2007 Final Rule." DHS concluded that "the clarification of this point in the preamble of the Supplemental Final Rule fully addresses this Court's concerns, rendering this issue moot."

In addressing the third question, DHS claimed in the August 2007 Final Rule that a regulatory flexibility analysis was not necessary because "the [DHS] Secretary certified that the rule will not have a significant economic impact on a substantial number of small entities." However, the Court found that "there are serious questions whether DHS violated the RFA by refusing to conduct a final flexibility analysis." DHS elected to perform a regulatory flexibility analysis in order to address the Court's concern.

DHS included the Final Regulatory Flexibility Analysis in the Supplemental Final Rule. It also supplemented this analysis by including a Final Small Entity Impact Analysis in the Supplemental Final Rule. DHS asserted that the Supplemental Final Rule "provides a detailed and comprehensive analysis of the possible economic impact of the Safe Harbor Rule on small entities, in full satisfaction of the RFA's requirements." DHS asserts that such good faith effort to comply with the procedural obligations under the RFA also renders this issue moot.

DHS also filed a Supplemental Administrative Record containing over 3,800 pages of supporting documents in support of its motions. These documents included, among other things, various Congressional committee hearing reports, SSA publications, and public comments for and against the Supplemental Final Rule. DHS asserted that all of these documents were evaluated, considered, and relied upon in the preparation and publishing of the Supplemental Final Rule.

One document filed with the Court as part of the Supplemental Administrative Record is of special interest. This document is the revised ICE letter which will accompany SSA no-match letters sent to employers. The letter is a summary, in question and answer format, of the duties imposed on an employer that receives a no-match letter from the SSA.

Simply stated, an employer that receives a SSA no-match letter and wants to take advantage of the Safe Harbor Rule would do the following:

  1. Promptly (no later than 30 days) check its records to ensure that the mismatch was not the result of an error on the employer's part;
  2. If this does not resolve the problem, the employer would ask the employee to confirm the accuracy of the employer's records of the employee;
  3. If necessary, the employer would ask the employee to resolve the issue with SSA;
  4. If the employee or the employer was able to successfully resolve the mismatch, the employer would still have to make sure that it followed the instructions in the SSA no-match letter. The employer should also verify that the correction was made in the SSA records by using the Social Security Number Verification System ("SSNVS") administered by SSA. The employer should retain a record of the date and time of the verification. SSNVS can be accessed through or by telephone at 1-800-772-6270; and
  5. If none of the foregoing measures resolve the matter within 90 days of receipt of the SSA no-match letter, the employer should complete, within three days, a new I-9 Form as if the employee in question were newly hired, except that no document may be used to verify the employee's authorization for work that uses the questionable SSN and no document may be used to verify the employee's identity that does not have a photograph of the employee.

Finally, if the employer is unable to confirm that the employee is authorized to work (by following the above procedures), the employer risks liability for violating the immigration law by knowingly continuing to employ an unauthorized person. This means that DHS could then use the no-match letter as evidence that the employer has constructive knowledge of employing a person in violation of the INA. This liability includes civil and criminal penalties, including the possibility of forfeiture of assets.

For more information on this topic, please contact or call (888) 598-7070.


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