“No-Match” Rule Rescinded

Introduction

On October 7, 2009, the Department of Homeland Security (DHS) issued a final rule that rescinded the so called “no-match” rule.

Background

DHS originally issued the “no match” rule in August of 2007 in an attempt to crackdown on employers who “knowingly” hired undocumented workers.  The rule required an employer that received a “no match” letter from the Social Security Administration (SSA), indicating that an employee’s name and the social security number did not match, to resolve the discrepancy within 90 days or terminate the employee.   It provided for a “safe harbor” procedure that employers could follow, ending with the employee’s termination within 90 days if the mismatch could not be resolved.  If the employer did not follow the “safe harbor” rules, it would be subject to increased fines and criminal penalties.

At that time various labor and business groups filed suit seeking an injunction against the DHS enforcing the rule, which they believed was severely flawed.  In October 2007, the U.S. District Court for Northern California barred DHS and the Department of Commerce from enforcing the new measures. 

“After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs,” stated the DHS announcement.

Status

The final rule rescinding the “no match” rule will go into effect November 6, 2009.