Update on 'No-Match' Letters

The “no-match” letter is meant to prevent the use of false employment verification information and, in furtherance of that objective, the DHS issued regulations outlining the safe-harbor procedures for employers who receive “no-match” letters. However, the DHS regulations were challenged immediately after they were issued, and their implementation was blocked when the U.S. District Court for the Northern District of California issued a preliminary injunction on Oct. 10, 2007. AFL-CIO v. Chertoff, 552 F. Supp. 2d. 999 (N.D. Cal. 2007).

On Aug. 19, 2009, DHS proposed to rescind the regulations outlining the safe-harbor procedures and on October 7, 2009, published final regulations effectuating the rescission. Nonetheless, the INA still requires that employers refrain from hiring or employing an alien with knowledge that such alien is not legally authorized to work in the United States. Therefore, employers should continue to review carefully, and maintain accurate records relating to, each employee's eligibility to work. Employers should also continue their existing procedures for the review of “no-match” letters to avoid potential civil and criminal penalties under the INA.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP. Austin Ozawa, an associate in the same office, assisted with the preparation of this article.

On Oct. 7, 2009, the Department of Homeland Security (“DHS”) published a final rule rescinding its safe-harbor procedures for employers that receive “no-match” letters from the Social Security Administration (“SSA”) or similar letters from the DHS. Safe-Harbor Procedures for Employers Who Receive No-Match Letter: Rescission, 74 Fed. Reg. 51,447 (Oct. 7, 2009). (Readers may wish to review the articles about the “no-match” rules that have previously appeared in the Employment Law Strategist, which can be found in the February and March 2008 issues.

Background

Under the Immigration and Nationality Act of 1952 (the “INA”), it is unlawful for an employer to hire or continue to employ an alien if the employer knows that the alien is not authorized to work in the United States. As a result, employers are required to verify each employee's eligibility to work through use of an Employment Eligibility Verification form (“Form I-9″). If the information provided on the Form I-9 does not correspond with the information of the SSA, employers may receive a “no-match” letter.

The “no-match” letter is meant to prevent the use of false employment verification information and, in furtherance of that objective, the DHS issued regulations outlining the safe-harbor procedures for employers who receive “no-match” letters. However, the DHS regulations were challenged immediately after they were issued, and their implementation was blocked when the U.S. District Court for the Northern District of California issued a preliminary injunction on Oct. 10, 2007. AFL-CIO v. Chertoff, 552 F. Supp. 2d. 999 (N.D. Cal. 2007).

On Aug. 19, 2009, DHS proposed to rescind the regulations outlining the safe-harbor procedures and on October 7, 2009, published final regulations effectuating the rescission. Nonetheless, the INA still requires that employers refrain from hiring or employing an alien with knowledge that such alien is not legally authorized to work in the United States. Therefore, employers should continue to review carefully, and maintain accurate records relating to, each employee's eligibility to work. Employers should also continue their existing procedures for the review of “no-match” letters to avoid potential civil and criminal penalties under the INA.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP. Austin Ozawa, an associate in the same office, assisted with the preparation of this article.