Immigration Law Alert
August 26, 2009
Author:
In Memoriam: The No Match/Safe Harbor Rule
Hayes C. Stover
hayes.stover@klgates.com
+1.412.355.6476
K&L Gates is a global law firm with
lawyers in 33 offices located in North
America, Europe, Asia and the Middle
East, and represents numerous GLOBAL
500, FORTUNE 100, and FTSE 100
corporations, in addition to growth and
middle market companies,
entrepreneurs, capital market
participants and public sector entities.
For more information, visit
www.klgates.com.
On August 19, 2009, at 74 Fed. Reg. 41,801, the Department of Homeland Security’s
(DHS) Immigration and Customs Enforcement (ICE) proposed rescinding the No
Match/Safe Harbor Rule (the “Rule”). Under this Rule issued August 15, 2007, the
Social Security Administration would have been required to send employers letters
stating that social security numbers submitted for some of its employees did not
match government records. The letter would also suggest steps that the employer
could take to resolve the discrepancy and thereby avoid possible penalties for
employing individuals not authorized to work in the United States. A more detailed
discussion of the Rule can be found in our Alert dated August 17, 2007.
The Rule was enjoined by a federal district court before its effective date, and the
injunction remains in effect despite subsequent efforts to have the injunction
removed.
The current administration announced on July 8, 2009, that it intended to propose
rescinding the Rule. On July 9, 2009, the Senate included in the 2010 homeland
security appropriations bill a prohibition against spending any money on or after
October 1, 2009, to rescind the Rule. Comments on the proposed rescission will be
accepted until September 18, 2009. If the rescission becomes final prior to October
1, 2009, the Senate spending provision will be of no effect even if it is included in
the final appropriations act.
In the comments to the proposed rescission, DHS stated:
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.
The Rule was opposed by most employers, labor organizations, and immigrant
groups. Accordingly, it is very probable that the rescission will be accomplished
prior to October 1, 2009. While congressional action to resurrect the Rule is
possible, it is considered unlikely.
The rescission of the Rule should not be received with a sigh of relief by employers.
As the statement above notes, ICE has a number of other weapons to use in its
crackdown on employers who employ foreign nationals who are not authorized to
work. Increased audits both actual and promised of employers and their compliance
with I 9 employment verification requirements are yet another reason why employers
must be vigilant in complying with employment verification obligations.
Immigration Law Alert
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August 26, 2009
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