Effective November 6, 2009, DHS is rescinding the regulations it issued in 2007 creating a "safe harbor" for employers who followed the procedures in the regulations for responding to a Social Security "no-match" letter. The regulations were never implemented because they were stayed by U.S. District Court for the Northern District of California in the case AFL-CIO v. Chertoff,  552 F.Supp.2d  999 (N.D. Cal. 2007).

DHS emphasized that it has not changed its position on the merits of the no-match regulations, but it has determined that it is more effective and a better use of resources for the DHS to concentrate on improving employer verification options, such as E-Verify and the ICE IMAGE program, rather than going forward with the Social Security "no-match" regulations. 

Because the no-match regulations are being rescinded, employers should not follow the safe harbor procedures they dictate. Elements of the regulations, such as completing a new I-9 for existing employees who are the subject of a no-match letter and restricting the documents that can be used by the employee on the new I-9, could be construed as unfair immigration-related employment practices in the absence of a rule authorizing them.

Employers should, however, have procedures and processes in place for responding to no-match letters, including strategies for responding to the Social Security Administration and conducting an appropriate human resources investigation of an employee named in a no-match letter. Employers should exercise care when instituting strategies, however, to avoid discrimination and unfair immigration-related employment practices claims. For an example of the risks associated with no-match procedures, click here to read the Ballard Spahr alert Companies Need To Assess Policies on No-Match Letters Following Ninth Circuit Ruling. 

Copyright © 2009 by Ballard Spahr LLP.
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