Court Puts “No-Match” Rule on Hold
The AFL-CIO and the business community have won a major, if less than final, victory in their lawsuit against the “no-match” rule that the Department of Homeland Security (DHS) announced on August 15, 2007.
The U.S. District Court for the Northern District of California has issued a preliminary injunction against that rule, blocking its implementation until the court can render a final decision on the merits of the case.
The judge issued the injunction primarily on the basis that the rule carries a significant risk of irreparable harm to both employers and employees, while further delay in its implementation would carry little if any risk of harm to the government. The judge also found that the plaintiffs had raised serious questions about the rationale for the rule, about the scope of DHS’s authority, and about DHS efforts to comply with the Regulatory Flexibility Act.
AGC continues to urge members to fully comply with all immigration rules and regulations, and to promptly respond to any “no-match” letters that they receive from the Social Security Administration (SSA). It appears that SSA retains authority to send “no-match” letters in the format used prior to issuance of the DHS rule, and that DHS retains discretion to take a harder look at any employer that ignores a no-match letter and to use such a letter as at least one piece of evidence of what an employer’s knowledge about an individual’s right to work in the United States.
In meetings with AGC, DHS has made it clear that the Department intends to step up enforcement of the law. An employer that ignores discrepancies in Social Security numbers may therefore continue to run a risk of closer scrutiny. How an employer has dealt with such discrepancies may continue to be at least one factor that DHS takes into account as it assesses the totality of the circumstances surrounding an employer’s practices and whether the circumstances justify finding that the employer has violated the law.
AGC will continue to monitor the situation carefully, and to encourage both the legislative and regulatory changes necessary to effect truly comprehensive immigration reform.
For more information on the rule and on AGC’s tips for reducing the risk of immigration law noncompliance, click here. To purchase a recording of AGC’s September 20, 2007, audio conference on the rule, featuring attorneys from Littler Mendelson, click here. For information on all upcoming AGC audio conferences and recordings of past audio conferences, click here.
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