From the office of the Department of Homeland Security:

DHS Issues Supplemental Proposed Rule With Employer Guidance Regarding No-Match Letters

Release Date: March 21, 2008

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

The U.S. Department of Homeland Security (DHS) released today a Supplemental Proposed Rulemaking for the No-Match Rule previously issued on August 15, 2007. This rulemaking addresses three issues cited in a decision of the U.S. District Court for the Northern District of California enjoining the August 2007 No-Match Rule. This Supplemental Proposed Rulemaking provides a more detailed analysis of how DHS developed the No-Match policy and will help responsible employers ensure that they are not employing unauthorized workers.

"We are serious about immigration enforcement. The No-Match Rule is an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need," said Homeland Security Secretary Michael Chertoff. "This supplement specifically addresses the three grounds on which the district court based its injunction. We have also filed an appeal and are pursuing these two paths simultaneously to get a resolution as quickly as possible."

The rule does not create new legal obligations for businesses. It simply outlines clear steps an employer may take in response to receiving a letter from the Social Security Administration indicating that an employee’s name does not match the social security number on file. If the business follows the guidance in the No-Match Rule, comprising various actions to rectify the no-match within 90 days of receiving the letter, they will have a safe harbor from the no-match letter being used against them in an enforcement action.

The original No-Match Notice of Proposed Rule Making was published on June 14, 2006, and the comment period was open for 60 days. The department then incorporated the comments and issued a final rule on August 15, 2007. DHS is requesting public comment on the Supplemental Proposed Rulemaking for 30 days after its publication in the Federal Register.

TK: Here is coverage from The Washington Post, here from The Earth Times and what follows is reaction from United in a member alert from earlier today:

Tomorrow, the Department of Homeland Security (DHS) will publish in the Federal Register a Supplemental Proposed Rulemaking for the No-Match Rule. The initial No-Match rule, which created new legal obligations for businesses to verify employees are authorized for domestic work, was published and scheduled to take effect on September 14, 2007. However, the implementation of the rule was delayed due to litigation led by the U.S. Chamber of Commerce, National Roofing Contractors Association, American Nursery and Landscape Association, and United Fresh. Last October, these groups successfully challenged some of the procedural aspects of how the rule was issued.

In a press statement, DHS notes that "the rule does not create new legal obligations for businesses. It simply outlines clear steps an employer may take in response to receiving a letter from the Social Security Administration indicating that an employee's name does not match the social security number on file. If the business follows the guidance in the No-Match Rule, comprising various actions to rectify the no-match within 90 days of receiving the letter, they will have a safe harbor from the no-match letter being used against them in an enforcement action". However, preliminary analysis of the revised rule so far confirms that the Department made very few changes to the substance of the initial rule. Instead, the revised rule is merely an attempt to supplement the rulemaking and address the procedural deficiencies noted by the court.

As a result of the lawsuit last fall, the Administration halted the implementation of the rule and delayed issuing no-match letters to employers. However, with the release of the revised rule and in the absence of new claims being pursued, it is expected that the Administration will give the “green light” to SSA to begin issuing no-match letters, along with a letter from the DHS instructing employers of appropriate actions to take.

United Fresh will continue to track the administration's actions and analyze the impact they can have on produce businesses. For additional information regarding the SSA and DHS's policy regarding no-match letters, visit the SSA website. In addition, you can visit the United Fresh No-Match Immigration Resource Center for additional information about this important issue and a copy of the new proposed rule.

Labels: FDA, immigration