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DHS Issues ‘Final’ No-Match Letter Rule, While Critics Vow to Continue Opposition

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in Employment Law,HR Management,Human Resources,Leaders & Managers,Management Training

The Department of Homeland Security (DHS) on Oct. 23 issued a supplemental final rule that it says provides additional background on how employers should respond when they receive no-match letters from the Social Security Administration (SSA).

But critics of DHS’s controversial no-match letter rules say the new proposal does not differ substantially from one that a federal judge in California blocked last year after business, labor and immigrant-rights groups filed a lawsuit challenging its constitutionality.

Those groups say they will renew their challenge when DHS asks U.S. District Judge Charles R. Breyer to lift an injunction he imposed in October 2007 prohibiting the department from enforcing the rules. DHS is expected to make that request within the next few days.

SSA informs thousands of employers every year via no-match letters that certain employees' names and corresponding Social Security numbers provided on the employers' Form W-2 wage reports do not match SSA's records. As many as 4% of approximately 250 million wage reports the SSA receives each year belong to employees whose names and corresponding Social Security numbers do not match SSA records.

The no-match rule details steps employers may take when they receive a "no match" letter and guarantees that U.S. Immigration and Customs Enforcement (ICE) will consider employers who follow those steps to have acted reasonably. If an employer follows the safe harbor procedures in good faith, said Homeland Security Secretary Michael Chertoff , ICE will not use the employer's receipt of a no-match letter as evidence to find that the employer violated the employment provisions of the Immigration and Nationality Act by knowingly employing unauthorized workers.

Chertoff said the regulation, which was originally proposed in June 2006 and issued in August 2007 as a final rule, clarifies what steps responsible employers can take to resolve discrepancies identified in "no-match" letters issued by the Social Security Administration (SSA).

He said it also provides guidance to help businesses comply with legal requirements intended to reduce the illegal employment of unauthorized workers. “The additional information in this supplemental rule addresses the specific items raised by the court, and we expect to be able to quickly implement it," said Chertoff.

A diverse coalition of critics disagree.

“The DHS has reissued the same rule with utter disregard for the impact it will have on work-authorized immigrants who will lose their jobs due to the inaccuracies in the SSA database, which still haven't been fixed,” said Marielena Hincapié, executive director of the National Immigration Law Center, one of the groups whose suit led to the injunction last year.

The lawsuit—other parties to it included the American Civil Liberties Union and the AFL-CIO—charged that the rule's enforcement would put workers at risk of losing their jobs because the SSA database is rife with errors and would cause discrimination against workers who look or sound "foreign."

The Society for Human Resource Management and the U.S. Chamber of Commerce also oppose the proposed no-match rule, arguing it places an undue burden on employers to enforce the nation's immigration laws.

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