DHS Rescinds No-Match Rule

The Department of Homeland Security (DHS) has issued a final rule rescinding the so-called "No-Match rule" first issued in August 2007 and supplemented in October 2008.  The final rule is the same as the proposed rule issued in August 2009. The rescinded rule addressed the legal obligations of an employer upon receipt of a "no-match letter," which is a letter from SSA informing an employer that employee Social Security Numbers submitted on employer W-2 forms do not match SSA records or a letter from DHS informing the employer of a discrepancy calling into question an employee's work authorization.  The rescinded rule set forth a "safe-harbor" process for an employer to follow in order to avoid a finding that its receipt of such a letter gave it constructive knowledge of a worker's illegal status.  The rule was never implemented, however, because a legal challenge brought by the U.S. Chamber of Commerce, AFL-CIO, and others led to a preliminary injunction that was still in force when DHS rescinded the rule on October 7.  The lawsuit is now moot and will likely be dismissed after the rescission takes effect on November 6.  According to the October 7 rule, DHS "has not changed its position as to the merits of the  2007 and 2008 rules" but has "decided to focus on more universal means of encouraging employer compliance than the narrowly focused and reactive process of granting a safe harbor for following specific steps in response to a no-match letter."  DHS reminded employers:

Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of "constructive knowledge."  A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information.  Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.

DHS also reminded employers that terminating of an employee referenced in a no-match letter without first attempting to resolve the mismatch, or treating an employee differently based on national origin or perceived citizenship status, may be unlawful discrimination under the anti-discrimination provisions of the Immigration and Nationality Act.  DHS advised:

Employers should not use No-Match letters, without more, as a basis for firing employees without resolution of the mis-match, and DHS has never countenanced such a practice. DHS urges employers, employees, and other interested parties to contact the Office of Special Counsel for Immigration-Related Unfair Employment Practices, (800) 255-8155 or http://www.usdoj.gov/crt/osc/, for additional information and guidance about the application of the anti-discrimination provisions.

DHS did not say whether it plans to issue further guidance on how employers should respond to a no-match letter.  AGC will monitor any developments in that area.  AGC will monitor and report on any developments.  Meanwhile, employers that receive a no-match letter are advised to carefully follow the instructions provided in the letter, to take prompt actions -- similar to those set forth in the safe-harbor process -- that would demonstrate the employer's good-faith effort to resolve the mismatch and avoid the employment of unauthorized workers, and to seek the advice of legal counsel as needed.  For more information on the safe-harbor process and on other steps that employers can take to protect themselves, click here.