November 1, 2008
FairUS.org

Department of Homeland Security (DHS) Secretary Michael Chertoff announced on October 23rd that the Administration will ask a federal judge to lift a stay on new federal no-match regulations, a move that has angered both the U.S. Chamber of Commerce and the American Civil Liberties Union (ACLU). (Remarks by Homeland Security Secretary Michael Chertoff on the State of Immigration and the No Match Rule)

The No-Match Regulation, which was finalized in September 2007, provides a "safe harbor" protocol for employers who receive a no-match letter. Sent by either the Social Security Administration (SSA) or DHS, these letters notify employers that there is a discrepancy with the information provided by the employer on an employee's I-9 form. Under the regulation, an employer who receives a no-match letter:

• Has 30 days to check the appropriate records and determine if the discrepancy was caused by a clerical error, correct the error with SSA, and verify that the corrected name and Social Security number match SSA's records;
• Must contact the local DHS office in accordance with instructions included in the letter to resolve discrepancies in the stated immigration status of the employee, if the letter was sent by DHS;
• Must attempt to re-verify the worker's employment eligibility by completing a new I-9 employment verification form, if the discrepancy cannot be resolved with either SSA or DHS within 90 days of receipt of a no-match letter.

Additionally, if the employer cannot verify the employee's work eligibility through completion of a new I-9 form, the employer may terminate the employee. If the employee is retained, the employer could be determined to have constructive knowledge that they are continuing the employment of an illegal alien. (See, Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, ICEB-2006-0004-0001, June 14, 2006)

The regulation was stayed by U.S. District Court Judge Charles Breyer after a suit was brought against it by the U.S. Chamber of Commerce, the American Civil Liberties Union and the AFL-CIO. In March 2008, DHS responded to the court's concerns by publishing a supplemental Proposed Rule that included a more detailed analysis of how the Department developed the regulation and an economic analysis of the rule. (See, Small Entity Impact Analysis: Supplemental Proposed Rule "Safe- Harbor Procedures for Employers Who Receive a No- Match Letter, ICEB-2006-0004)

In response to Chertoff's announcement, Randel K. Johnson, a vice president of the U.S. Chamber of Commerce, told the Washington Post, "We are looking at our litigation options," (The Washington Post, October 24, 2008)

Chertoff commented on the Supplemental Rule finalized October 23rd: "The additional information in this supplemental rule addresses the specific items raised by the Court, and we expect to be able to quickly implement it. The No-Match Rule, along with E-Verify, will increasingly make the pleas of ignorance from businesses that seek to exploit illegal labor ring hollow, and equip their responsible competitors with the tools they need to hire and maintain a legal workforce." (Media Newswire, October 23, 2008)
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 The Federation for American Immigration Reform (FAIR) is a national, nonprofit, public-interest, membership organization of concerned citizens who share a common belief that our nation's immigration policies must be reformed to serve the national interest. FAIR seeks to improve border security, to stop illegal immigration, and to promote immigration levels consistent with the national interest—more traditional rates of about 300,000 a year.