October 28, 2008

No-Match Rule - Litigation Update

According to court documents, the Department of Homeland Security (DHS) will request that the U.S. District Court for the Northern District of California lift the injunction on the department's no-match rule (the rule) following the rule’s publication in the Federal Register on October 28, 2008. DHS also plans to simultaneously move for summary judgment. The no-match rule is DHS’s attempt at providing guidance to employers on how to respond to a no-match letter from the Social Security Administration (SSA) or the DHS equivalent. The Rule recommends specific procedures for verifying the employment eligibility of the employee upon receipt of a no-match letter. If followed, the rule provides the employer a “safe-harbor.” The no-match rule, formally published on October 28, 2008, essentially “republishes the text of the August 2007 Final Rule  without substantive change.” While no real changes were made, DHS’s release did provide additional background, analysis and clarification on the no-match rule in an attempt to address the issues raised by the California District Court. A detailed analysis of these clarifications and the rule can be found in a new GT Alert. Although Judge Charles Breyer of the U.S. District Court for the Northern District of California is currently enjoining the government from sending out no-match letters to employers, if the injunction is lifted, the SSA may be sending out over 140,000 no-match letters soon. Many believe that even if the injunction is lifted, the Plaintiffs will immediately appeal to the 9th Circuit and ask for an immediate stay. If the stay is granted, SSA will once again be prohibited from mailing the now infamous no-match letters. Many of these issues will likely be addressed at the status conference, which is now scheduled for November 21, 2008. Given the potential liability, it is important for businesses stay up to date regarding the pending litigation and to be prepared to resolve any no-match issues according to the procedures outlined in the rule. To this end, GT is issuing a separate alert updating employers on the status of the rule with guidance on compliance. Check the Immigration and Compliance Updates page at http://immigration.gtlaw.com for further information

As always, GT will provide you with up to date information regarding DHS’s no-match rule.