On March 21, 2008, the Department of Homeland Security ("DHS") released its long-awaited supplemental proposed rule for safe harbor provisions for employers who receive a no-match letter.
DHS published its Final Rule in August 2007 but a consortium of businesses and unions filed a lawsuit and obtained a preliminary injunction prohibiting the DHS from implementing the new regulations. Subsequently, the DHS sought and received court authorization to suspend the lawsuit pending DHS action to issue new supplemental rules to remedy legal defects with the August 2007 Final Rule. The new supplemental rule should be published in the Federal Register sometime during the week of March 24, 2008. The public will have 30 days to comment on the new rule. The implementation date for the Final Rule, as amended, will await further court authorization. A hearing is scheduled for Friday, March 28, 2008.
Unfortunately, the DHS has made only minor changes to the Final Rule as originally published. The first change is that an employer would have to notify an employee within five days after the employer completes its internal document review after receiving a no-match letter notice. The second change is that the Final Rule does not apply to any person hired by the employer prior to November 6, 1986. This means that the August 2007 Final Rule will be implemented substantially as issued if the district court accepts the DHS supplemental proposed rule.
In its supplemental rule, DHS Secretary Chertoff wrote that DHS "proposes to repromulgate, without change, the regulations published at 72 FR 45611, as 8 CFR 274a.1(l)." In the press release announcing the supplemental rule Secretary Chertoff said:
"We are serious about immigration enforcement. The No-Match Rule is an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need. This supplement specifically addresses the three grounds on which the district court based its injunction. We have also filed an appeal and are pursuing these two paths simultaneously to get a resolution as quickly as possible."
What is clear is that the DHS, through its Immigration and Customs Enforcement department, fully intends to aggressively enforce the immigration laws against employers. The DHS has not softened or backed off its stated position that a Social Security Administration no-match letter provides notice to an employer that it may be employing unauthorized illegal workers and must take corrective action. An employer who receives a no-match letter and fails to take advantage of the safe-harbor provisions of the rule will be found to have "constructive knowledge" that the employer is employing illegal aliens.
Employers are cautioned to take all reasonable steps to ensure compliance with the immigration laws. Read a copy of the supplemental proposed rule.
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