• Court Rejects DHS' Attempt to Expedite "No-Match" Letters Lawsuit
  • January 14, 2009 | Author: Nelli Nikova
  • Law Firm: Bracewell & Giuliani LLP - Houston Office
  • On December 5, 2008, the U.S. District Court for the Northern District of California rejected a request by the Department of Homeland Security (DHS) to lift an injunction against its Final Rule on “Safe-Harbor Procedures for Employers Who Receive a No Match Letter."  The court also refused to expedite the case.  Instead, U.S. District Court Judge Charles Breyer set a briefing schedule which guarantees that the injunction will remain in place at least until March 2009 when the new administration will be in office.

    The DHS has been prohibited from implementing the Final Rule since October 2007, when the court granted an injunction requested by the unlikely coalition of the American Civil Liberties Union, the U.S. Chamber of Commerce, the AFL-CIO and a number of other business and civil rights groups.  The disputed Final Rule requires the termination of workers who cannot resolve social security number discrepancies within 93 days, but provides employers a “safe harbor.”  The “safe harbor” provision guarantees that if an employer who receives a no-match letter follows the steps set forth in the Final Rule, the no-match letter will not be used “as evidence that the employer violated the employment provisions of the Immigration and Nationality Act.”

    In forbidding the DHS and the Social Security Administration (SSA) from implementing the Final No-Match Rule last year, the federal court found that there were serious questions about the rule’s legality, including whether it placed an onerous burden on employers and discriminated against workers who appeared to be lawful immigrants or U.S. citizens.  Critics of the rule claim that the SSA’s database is riddled with errors and therefore is unreliable.  As we recently reported, the DHS issued a Supplemental Final Rule on October 28, 2008, which the DHS claims addresses the court’s concerns, although it does not substantively change the Final Rule.

    Following its issuance of the Supplemental Final Rule, the DHS asked the court to either lift the injunction or expedite the case.  The DHS argued that the continuing injunction would force the SSA either to delay sending out a new batch of no-match letters (usually begun in January) or to send out letters without the Final Rule’s safe harbor procedures.  The DHS’ urgency argument, however, failed to persuade Judge Breyer, possibly because the DHS had taken more than a year from the issuance of the injunction to submit the Supplemental Final Rule.  The opponents of the Final Rule also asserted that the matter was too important to be subjected to a hasty resolution and that the Supplemental Final Rule failed to address all of the court’s concerns about its legality.

    Bottom Line

    It is clear that the fate of the Final Rule on no-match letters will not be decided during the Bush Administration’s term.  Moreover, there is no indication on whether the Obama Administration will continue current policy or take a different approach to immigration enforcement.  Considering the aggressive pace at which Immigration and Customs Enforcement continues to conduct raids, cautious employers who receive no-match letters may want to follow the safe harbor procedures set forth in the Final Rule.  Although they are not enforceable at this juncture, they delineate the current Administration’s position on how to avoid liability with respect to the employment of unauthorized workers.

    In short, the safe harbor procedures require employers who receive SSA no-match letters to:

    • Within 30 days – check for and correct typographical errors and notify the SSA of their findings;
    • Within 90 days – Correct non-typographical errors or, if the employer’s records are accurate, have employee resolve discrepancies directly with the SSA; or
    • Within 93 days – Where discrepancies cannot be resolved within 90 days, have employees complete new I-9 forms as if the employees are newly hired.  Employers, however, may not accept documents to establish employment authorization which contain the disputed SSA or alien number and must require photo identification.