DHS Issues Supplemental Final Rule on No-Match Letters

The Department of Homeland Security (DHS) on October 23 released a supplemental final rule on “no-match letters,” which was published in the October 28 issue of the Federal Register.  The supplemental final rule reaffirms the content of a final rule issued in August 2007, provides additional supporting analysis for that final rule, and corrects a typographical error in the rule.  It makes no substantive changes. The August 2007 rule was enjoined by a U.S. district court in litigation brought by the AFL-CIO and several business groups.  DHS issued the supplemental rule in response to concerns raised by the court and intends to ask the court to lift the injunction.  The plaintiffs are expected to fight that effort and seek a permanent injunction.  If the injunction is lifted, the rule could take effect immediately following the court's decision. Immigration law prohibits employers from “knowingly” employing unauthorized aliens.  Regulations and case law issued prior to 2007 interpret the term “knowingly” as including “constructive knowledge” and provided examples of situations that may establish “constructive knowledge.”  The August 2007 rule adds additional examples, including an employer’s failure to “take reasonable steps” after receiving a no-match letter from the Social Security Administration (SSA) or DHS.  The rule sets forth a process that an employer may follow that will be deemed “reasonable steps” taken in response to receipt of a no-match letter and for the employer to receive a “safe harbor” from a finding of constructive knowledge based on receipt of a no-match letter.  AGC raised concerns about certain shortcomings in the “safe harbor” process such as the failure to toll the time limits for exigent circumstances.  Those shortcomings remain in the rule.  AGC also raised concerns about the misleading content of a standard cover letter drafted by DHS for insertion in the no-match letters.  DHS indicates in the supplemental final rule that the cover letter will be revised. Despite shortcomings in the “safe harbor” process, the rule provides employers with some guidance as to how to respond to receipt of a no-match letter.  It also offers employers with some – albeit limited – protection from liability for employing an unauthorized alien.   For more information on the “safe harbor” process and guidance on how to protect your company, click here.  Guidance is also provided in a recording of a September 2007 AGC audio conference that can be purchased here. For more information, contact Denise Gold at (703) 837-5326 or goldd@agc.org.