No-Match Rule Has Not Taken Effect


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

In August 2007, the Department of Homeland Security published a final rule on “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” That rule provided instructions for employers who received letters from the Social Security Administration informing them that social security numbers for certain employees which had been submitted did not match their names. In October 2007, a federal district court issued a preliminary injunction prohibiting the implementation of that rule. That preliminary injunction remains in effect.  As a result of the injunction, the Social Security Administration did not send no-match letters to employers in 2007 and may not send such letters in 2008. A hearing on the preliminary injunction was held on August 1, 2008. However, in March 2008, a supplemental proposed rule was issued with the purpose of remedying the defects which led to the issuance of the preliminary injunction.

In recent years, employers who received no-match letters have been uncertain as to what they can do and, more importantly, what they must do. The receipt of a no-match letter by itself is not evidence that the employee lacks work authorization. The rule issued in August 2007 provided a detailed set of procedures for employers to follow. The rule also admonished employers that if they did not follow such steps, which  could ultimately result in termination of the employee approximately 90 to 93 days after receipt of the no-match letter, they could be found to have engaged in the intentional retention of unauthorized aliens.

Again, information from the Social Security Administration indicated that no “no-match” letters were issued in late 2007 or 2008, so the issue at least at this point, would appear to be moot. If, for some reason your company receives a no-match letter, you should contact counsel for assistance in how to proceed given the status of the preliminary injunction at the time of the receipt of the no-match letter. We will provide notice if and when the preliminary injunction is lifted.

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