Immigration Law Advisory - UPDATE on the “No-Match” Letter Rule

In the Wake of Legal Challenge to the Controversial “No-Match” Regulation, US District Court Issues Stay Halting Implementation of the Rule 

Final regulations issued by the US Department of Homeland Security (DHS) relating to the legal obligations of an employer who receive a “no-match letter” from the Social Security Administration (SSA) were set to take effect September 14, 2007, with mass mailings from SSA starting on September 4.

However, the new regulations have attracted significant controversy, leading prominent organizations including the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union (ACLU), and National Immigration Law Center to file suit challenging the rule.  In its complaint, the Plaintiffs argue that the new rules, which set forth the legal obligations of an employer who receives a no-match letter from the SSA or a letter regarding I-9 employment verification from DHS, are inconsistent with certain existing immigration laws, delegate DHS and the SSA impermissible statutory authority, and will result in discrimination and potential firing of lawfully employed workers.

The lawsuit references a December report of the SSA Inspector General that states 17.8 million of the SSA’s 435 million records contained errors that could result in discrepancies relating to a worker’s legal status.  Of the 17.8 million discrepancies, 12.7 million – more than 70 percent – belong to native-born US citizens.  The Plaintiffs assert that because the rule imposes liability on employers who fail to respond to a SSA or DHS letter, errors and inaccuracies attributable to the government’s social security database would pose a direct threat to the jobs of US citizens and other legally authorized workers.

On August 31, 2007, US District Judge Maxine M. Chesney, in San Francisco, issued a temporary restraining order staying the implementation of the DHS “no match” letter rule.  The order prevents DHS and SSA from enacting or enforcing the rule until an October 1 hearing can be held to determine whether an injunction should be issued.  In granting the order, Judge Chesney states that Plaintiffs raised serious questions as to the rule’s legality and demonstrated that the balance of harms sharply favors a stay.

The SSA responded on September 5, filing a motion arguing that preventing the agency from mailing the 141,000 no-match letters it had prepared would be detrimental to the agency and interfere with its ability to carry out its core objectives.  In its filing, the government requests that the hearing be moved forward to September 19, claiming that any delay past mid-September in mailing would cause a backlog into the first half of 2008.  To date, the motion is pending with the court.

Please check back for additional updates on this developing issue.  If you have questions about the latest developments regarding DHS and SSA no-match regulations, please contact Lynda S. Zengerle at 202.429.8170 or Aleta T. Okediji at 202.862.5733.