Homeland Security Releases Revised "No-Match" Rules

Homeland Security Releases Revised "No-Match" Rules

On Friday, March 21, the Department Homeland Security (DHS) released revised rules for employers who receive "no-match" letters from the Social Security Administration (SSA). Homeland Security issued the revised rules in response to a federal court injunction that stopped an earlier version from taking effect. No-match letters are notices sent by the SSA to employers, warning them that an employee's name and social security number do not match the Administration's records.

In August 2007, DHS first promulgated no-match letters requiring that employers who receive them take affirmative steps to have the employee resolve the no-match or terminate the employee. The rule was barely in place when several organizations, including the ACLU, the AFL-CIO, and the U.S. Chamber of Commerce, challenged them and persuaded the federal district court in San Francisco to issue an injunction, barring the rules from taking effect. That federal court decision determined that Homeland Security has the authority to require employers to ensure that listed employees are not illegal aliens, but held that the agency had made several technical errors in promulgating the rule. These three errors identified by the court were that Homeland Security:

Failed to adequately explain its change of position on "no-match" letters;
Established anti-discrimination standards outside of its authority; and
Failed to review and determine the impact of the new regulations on small businesses.
After this ruling, DHS announced it would comply with the court injunction, but also intended to revise the regulations to meet the court's objections.