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Legal Updates & Alerts

Department of Homeland Security Responds to SSA No-Match

April 8, 2008
In October, we told you that the United States District Court for the Northern District of California granted an injunction against the Department of Homeland Security's (DHS) new "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" final rule. The injunction was granted, in part, because of a concern that employers would face liability for having "constructive knowledge" that certain employees were not authorized to work following the receipt of a no-match letter.

Late last month, DHS filed a supplemental proposed rule in an attempt to clarify certain aspects of its August 2008 final rule to respond to the district court's injunction. DHS invited public comments on or before April 25, 2008 to the new proposed rule.

The supplemental proposed rule clarifies two aspects of the enjoined final rule. First, the final rule instructs that employers seeking the safe harbor must "promptly" notify affected employees after the employer conducts its internal records check. The supplemental proposed rule states that this obligation would be satisfied if the employer contacts the employee within five business days of completing its internal records review.

Second, the supplemental proposed rule clarifies that employers will not be found liable on a constructive knowledge theory for failing to conduct due diligence in response to the appearance of an employee hired before the enactment of the 1986 Immigration Reform and Control Act ("IRCA") in a no-match letter. Workers falling within the IRCA's grandfather clause would not be covered by the SSA no-match letter final rule.

For more information on the supplemental proposed rule, and for instructions on submitting a comment, please visit http://www.dhs.gov/xlibrary/assets/press_nomatch-snprm.pdf.