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The Latest on 'No-Match' Letters
In the wake of a failed attempt to negotiate legislation for comprehensive U.S. immigration reform with Congress, the Bush Administration recently announced a series of 'regulatory' reforms to tighten immigration enforcement. Perhaps the most significant and controversial of those reforms is the Department of Homeland Security's new regulation addressing 'no-match' letters. Although the new regulation has been temporarily enjoined pending a hearing in federal court, employers should begin considering how they will comply with it if an injunction is not granted.
Recent statistics have suggested that several million people are working in the United States illegally. See generally, Michael Hoefer, Nancy Rytina and Christopher Campbell, Department of Homeland Security, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2005 (2006). On Aug. 10, 2007, U.S. Immigration and Customs Enforcement (ICE), a division of the U.S. Department of Homeland Security (DHS), announced new regulations to help federal authorities and U.S. employers identify illegal workers who have used fraudulent documents to obtain employment. Every year, the Social Security Administration (SSA) and ICE send 'no-match' letters, titled 'Employer Correction Requests' (SSA) and 'Notice of Suspect of Documents' (ICE), notifying employers that certain of their employees' Social Security numbers or immigration data do not match the employees' names in official records. The new ICE regulations provide employers with specific instructions on how to address these no-match notifications properly, and create a 'safe harbor' for those employers who follow the instructions carefully. An employer who receives a no-match letter but does not follow the instructions or take other appropriate action may risk a later ICE determination that the employer had 'constructive knowledge' that the employee(s) at issue were working illegally. This could expose the employer to civil penalties and, in certain circumstances, to prosecution.
The regulations were to take effect on Sept. 14, 2007, but have been enjoined by a temporary restraining order issued by a federal judge in the Northern District of California pending a hearing, which was held Oct. 1, 2007, on whether a preliminary injunction should be issued. AFL-CIO v. Chertoff, No. 07-4472 (N.D. Cal. filed Aug. 31, 2007). The order also prohibited SSA from dispatching thousands of notifications coupled with inserts from DHS/ICE regarding the new regulation that were to have been mailed out to employers in September of last year. At the Oct. 1 hearing, Judge Charles R. Breyer issued a preliminary injunction preventing the government from enforcing the No-Match regulation. Barring a successful appeal, the injunction will remain in effect until the lawsuit goes to trial.
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