Mismatch rule held up by OMB

Sharon Hughes of the NCAE said the proposed Department of Homeland Security rule of last June called "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" is currently on hold at Office of Management and Budget.

Hughes said DHS wants to gain access to records from the IRS/Social Security Administration of employers who receive mismatch letters. At the same time, they want to clearly spell out (and add to) the responsibilities of employers. Although it is being held up for now by OMB - perhaps in anticipation of progress on comprehensive immigration - Hughes said DHS is anxious to implement it.

Here is how the rule is summarized when it was proposed:


The Bureau of Immigration and Customs Enforcement proposes to amend the regulations relating to the unlawful hiring or continued employment of unauthorized aliens. The amended regulation describes the legal obligations of an employer, under current immigration law, when the employer receives a no-match letter from the Social Security Administration or the Department of Homeland Security. It also describes ‘‘safe-harbor’ procedures that the employer can follow in response to such a letter and thereby be certain that DHS will not find that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States. The proposed rule adds two more examples of situations that may lead to a finding that an employer had such constructive
knowledge to the current regulation’s definition of ‘‘knowing.’’ These additional examples involve an employer’s failure to take reasonable steps in response to either of two events:
(1) The employer receives written notice from the Social Security Administration (SSA) that the combination of name and social security account number submitted to SSA for an employee does not match agency records; or (2) the employer receives written notice from the Department of Homeland Security (DHS) that the immigration-status or employment-authorization documentation presented or referenced by the employee in completing Form
I–9 was not assigned to the employee according to DHS records. (Form I–9 is retained by the employer and made available to DHS investigators on request, such as during an audit.) The proposed rule also states that whether DHS will actually find that an employer had constructive knowledge that an employee was an unauthorized alien in a situation described in any of the regulation’s examples will depend on the totality of relevant circumstances. The ‘‘safe-harbor’’ procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee’s identity and employment authorization through a specified process.

TK: Despite the potential hazards for ag employers in the DHS rule, don't underestimate its appeal to John Q. Public. One Texas citizen wrote this comment about the proposed rule in the federal docket:


"The only reason I could see where one would not want to send a " no match" letter to Homeland Security would be if we are not really serious about identifying undocumented aliens and one would just like to talk about security but doesn't really want to take action. "