August 26, 2009

DHS Rescinds “No-Match” Rule and Shifts Enforcement Focus on Employers

On August 19, 2009, the Department of Homeland Security (DHS) announced its intention to rescind the Social Security Administration (SSA) "No-Match" rule through a proposed amendment published in the Federal Register. The "No-Match" rule would have relied on the SSA database for immigration enforcement by requiring employers to terminate workers unable to resolve discrepancies in their Social Security records.

A federal court blocked the "No-Match" rule in October 2007, after the American Civil Liberties Union, American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and National Immigration Law Center (NILC) filed a lawsuit against the DHS, charging that enforcement of the rule would put authorized workers—including U.S. citizens—at risk of losing their jobs and cause discrimination against workers who appear or sound "foreign."

The DHS announced the withdrawal of the "No-Match" regulation after determining that the agency preferred to focus enforcement efforts on preventing undocumented immigrants from working in the U.S. with increased compliance through improved verification programs, such as the electronic employment verification system (E-Verify), ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

Consequently, and in line with the new employer-focus paradigm, the Immigration and Customs Enforcement (ICE) branch of DHS announced that it would expand audits of businesses suspected of hiring unauthorized immigrants. Employers are left in a very precarious position and are urged to conduct internal audits and implement immigration compliance plans as soon as possible.