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Department of Homeland Security Publishes No-Match Supplemental Final Rule

Tuesday, October 28, 2008

(American Meat Institute)

The Department of Homeland Security (DHS) today published in the Federal Register a supplemental final rule, Safe Harbor Procedures for Employers who receive a No-Match Letter.  73 Fed. Reg. 63843).  DHS was forced to engage in further rulemaking after a U.S. District Court in San Francisco issued a preliminary injunction last year preventing DHS from moving forward with a previously published version of the rule.  In today’s version, DHS attempts to address concerns raised by the court last year.  Specifically, in the supplemental rule, DHS again asserts that it has the statutory authority to issue the rule based on the agency’s authority to enforce the immigration laws.  In that regard, the no-match rule amends existing DHS rules implementing the employer sanctions law and specifically the definition of what constitutes “constructive knowledge.”

In the supplemental, DHS also provides its justification for the changes, contending that, among other things, there is a need to resolve ambiguity and confusion for employers regarding their obligations under the immigration laws if they receive a no-match rule and that the Social Security Administration’s criteria for sending no-match letters helps focus on employers with the greatest reliance on undocumented workers.  

Although the court ruled that DHS lacked the statutory authority to make the type of statements included in the August 2007l rule that employers who follow the rule would not have engaged in unlawful discrimination under the anti-discrimination provisions of the immigration law, on October 23, 2008, the Department of Justice OSC issued a statement essentially taking the same position as did DHS in the 2007 publication. 

The Federal Register publication provides that the supplemental rule is final as of October 28.  However, the litigation remains ongoing, with the court’s views as to whether this supplemental rule fully addresses the concerns raised unknown.       

To view this final rule, click here: http://www.dhs.gov/xlibrary/assets/ice_no_match_letter_finalrule.pdf

To view the memo summarizing this rule, click here: http://www.meatinstitute.org/ht/a/GetDocumentAction/i/43386

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