Supplemental Proposed Rule on Social Security No-Match Letters Published this Week
The Department of Homeland Security (DHS) this week published a supplemental proposed rule that would direct employers on how to react to the receipt of Social Security No-Match letters. The rule is open for comment but can not go into effect until DHS returns to court to remove an injunction that was issued on the last version of the rule DHS published.
DHS had issued a final rule in August 2007 that was supposed to go into effect in September 2007, but all action was delayed after the United States District Court for the Northern District of California blocked implementation of the rule. This was in response to a lawsuit filed by the AFL-CIO arguing that the Social Security Administration database is error prone and therefore many citizens and legal immigrants could end up losing their jobs because of the new DHS rule. AGC financially supported the litigation against the rule because the rule and its proposed guidance document attempted to infer “constructive knowledge” that an employee was unauthorized to work in the U.S. simply through the receipt of a Social Security no-match letter.
The Judge in the case blocked the implementation of the rule last September saying that the original rule was flawed on three counts:
1) DHS had not supplied a reasoned analysis justifying a change in its position that a no-match letter, without more, would be sufficient to put an employer on notice that some of its employees may be unauthorized to work in the US;
2) That DHS had infringed on the authority of the Department of Justice (DOJ) by interpreting the anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), and;
3) That DHS had violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis.
The new proposed rule is an attempt by DHS to address the concerns laid forth in the lawsuit, but on initial examination appears to fall short. AGC will continue to review the new Supplemental proposed rule to determine its impact on the construction industry. Click here to see the supplemental proposed rule.
In addition, AGC held an audio conference on the previous proposed rule on September 20, 2007. A recording of this audio conference is available at www.agc.org/audioconferences.
For more information, please contact Kelly Knott at firstname.lastname@example.org or (202) 547-4685.
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