DHS Releases No-Match Supplemental Final Rule

PLEASE NOTE: The following is presented as general educational information. It is not legal advice, either express or implied. Consultation with legal counsel is recommended for all employment law matters. This information is subject to change without notice.

In August of 2007, the Department of Homeland Security (DHS) issued a Final Rule clarifying the steps responsible employers should take to resolve social security number (SSN) discrepancies identified in “no-match” letters issued by the Social Security Administration (SSA). Employers who follow the steps outlined in the Final Rule are guaranteed that U.S. Immigration and Customs Enforcement (ICE) will consider them to have acted reasonably and will not be subject to penalties under the provisions of the Immigration and Nationality Act.

Implementation of the No-Match rule has been stayed following a preliminary injunction issued by the U.S. District Court for the Northern District of California last year. On Thursday, Oct. 23, 2008, DHS issued a Supplemental Final Rule that provides additional background and analysis related to the No-Match Rule. The Supplemental Final Rule also provides guidance to help businesses comply with legal requirements intended to reduce the illegal employment of unauthorized workers. Within a matter of days, the DHS is expected to return to the U.S. District Court to request that the injunction be lifted so the implementation of the rule can proceed.

In addition, on Oct. 28, 2008, the US Department of Justice (DOJ) published the rule and a document to the Federal Register designed to help companies avoid discrimination charges as a result of no-match letters. Click here to view the DOJ guidance.

For more information, please see the DHS press release regarding the Supplemental Final Rule.