Safe harbor - supplemental final rule issued

As noted earlier, the Department of Homeland Security has pushed its supplemental final rule forward on the no-match rule for employers. From the summary in today's FR:

The Department of Homeland Security (DHS) is finalizing the Supplemental Proposed Rule published on March 26, 2008 and reaffirming regulations providing a ‘‘safe harbor’’ from liability under section 274A of the Immigration and Nationality Act for employers that follow certain procedures after receiving a notice— either a ‘‘no-match letter’’ from the Social Security Administration (SSA), or a ‘‘notice of suspect document’’ from DHS—that casts doubt on the employment eligibility of their employees. DHS is also correcting a typographical error in the rule text promulgated in August 2007. DATES: This final rule is effective as of October 28, 2008.


TK: Find the entire rulemaking docket here. The DHS estimated that a firm with more than 500 employees with a 40% no match rate would spend $30,239 complying with the rule. Reaction continues to roll in. From the California Farm Bureau.

In spite of Chertoff's eagerness to have the court revisit the issue, a California Farm Bureau specialist said he expects the injunction will remain in place for at least several months. California Farm Bureau Federation Associate Counsel Carl Borden, who has been following the case and has read the new document, said the Homeland Security response did not revise the rule, but simply provided more background information to justify it.

"Nothing's changed. The government intended this whole process to address the court's issues with the no-match rule. DHS didn't change a word of the no-match rule," Borden said. "All they did was give additional background for it. They also conducted and concluded from a small-employer impact analysis that the rule will not unduly burden small employers."

But the United States Chamber of Commerce contends that the rule's aggregate cost to employers would range from $1 billion to $1.6 billion annually.

Homeland Security says its response clarifies its position that an employer must take reasonable steps to resolve a Social Security number discrepancy identified in a Social Security Administration no-match letter. DHS says the failure to take such steps, coupled with the employer's receipt of the letter, proves the employer had "constructive knowledge" that a current employee identified in the letter is not eligible to be employed in the United States--a violation of federal law. In addition, the rule specifies the specific steps an employer may take to earn a "safe harbor" guarantee that Homeland Security will not use a no-match letter as evidence.

"No-match basically says you are going to get a letter from Society Security as an employer. It is going to tell you there is a problem. You have to resolve the problem," Chertoff said. "If you take the (no-match) letter and throw it in the wastebasket because you do not want to be bothered or you do not want to get the bad news, then you are taking a risk."

Borden said he believes the issue will be tied up in court for a long time.

"DHS says its effort will satisfy the court's concerns about the rule and that the court will lift the injunction," Borden said. "But the plaintiffs will vigorously contend the supplemental rulemaking didn't come close to fixing the problems identified by the court. The stakes are so high that no matter how Judge Breyer rules, it's a given the losing side will appeal."

Homeland Security originally proposed the no-match rule in June 2006 and first issued it in final form in August 2007.