The Department of Homeland Security (“DHS”) has announced its intent to modify its regulations by rescinding the amendments it had proposed relating to procedures that employers would be required to follow up on the receipt of a no-match letter sent by the Social Security Administration. Such letters are used to inform employers that certain employees’ social security numbers did not match their names. In practical terms, those procedures would have resulted in the termination of employees whose work authorization status could not be verified within the 93-day period following receipt of the no-match letter.
That rule first was announced in 2007, but was enjoined by the U.S. District Court for the Northern District of California based upon the DHS’s failure to provide certain supporting reasoning, failing to conduct an analysis required by law and because it exceeded its authority by interpreting the antidiscrimination portions of the law, which authority is given to another governmental agency.
The DHS determined that because of improvements in the E-Verify system, along with certain other DHS programs, it now had better tools than the no-match regulations for employers to use to reduce unauthorized employment. For example:
- The DHS has engaged in a more aggressive worksite-enforcement program and concluded that the fines levied as a result of that program would provide motivation for employers to more carefully monitor the work authorization of their employees.
- It has also implemented the debarment policy which would preclude an employer who knowingly employed unauthorized aliens from doing business with the federal government. That program has already resulted in some 31 companies and 40 individuals becoming disbarred from such work.
The proposed rescission of the regulations was published on August 19, 2009, and requested comments were to be submitted no later than September 18, 2009.
The bottom line is that even without the rule which is being rescinded, employers who receive no-match letters and do nothing about them will be exposed, at least in some part, to a charge that they knowingly hired or retained unauthorized aliens in their employment.