DHS Issues Supplemental Final Rule on No-Match Letters; Fails to Address Small Employer Concerns

On October 23, the Department of Homeland Security (DHS) issued the Supplemental Final Rule on "Safe Harbor Procedures for Employers Who Receive a No-Match Letter: Clarification; Final Regulatory Flexibility Analysis." The original rule was a concern to AGC and its members due to the lack of consideration for the impact on small businesses and the incorrect description of the changes by the Department of Homeland Security, potentially causing confusion in the enforcement of the rules. Despite numerous comments submitted by small employers at that time, the rule released today raises many of the same concerns. AGC will continue to review the new Supplemental Proposed Rule to determine its specific impact on employers in the construction industry. The original rule was issued and intended to be implemented in 2007; however, a legal challenge in the United States District Court for the Northern District of California delayed implementation. AGC 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 court delayed implementation due to: a failure by DHS to properly notify employers of unauthorized workers; issues surrounding the interpretation of anti-discrimination law; and the impact on small businesses.  Click here to see the supplemental proposed rule.