On Jul 16 2009

DHS Does Away With the Social Security No-Match Rule in Favor of E-Verify

Secretary of the Department of Homeland Security (DHS) Janet Napolitano announced on July 8, 2009 the Agency’s plans regarding two controversial regulations dealing with worksite enforcement.

DHS announced that they would withdraw the Social Security No-match regulation which has been enjoined from taking effect and the subject of federal court litigation.  Controversial since its passage, the Social Security No-Match rule established procedures that employers could follow if they received No-Match letters from the Social Security Administration or DHS.  No-Match letters inform an employer that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records.  However, DHS acknowledged in their court filings that the letters are not indicative of unauthorized employment as they are often the result of typographical errors or unreported name changes.

The regulation was promulgated as part of the previous Administration’s effort to stop the employment of unauthorized aliens.  Since October of 2007, the rule has been enjoined from taking effect.  DHS was ordered by the Federal Court to submit a brief by July 10, 2009 explaining the Obama Administration’s view on the regulation.  In the press release, Secretary Napolitano stated that DHS will imminently be proposing a new regulation rescinding the 2007 No-Match Rule.

DHS also announced that it will implement the amendment to the Federal Acquisition Regulation (FAR) which, with a few exceptions, requires federal contractors to verify the employment authorization of new employees as well as existing employees working on federal contracts.  The FAR requirements apply to the verification of work eligibility on federal contracts that are for a period longer than 120 days and with a value of over $100,000.  FAR also includes service or construction subcontracts of a covered contract, valued at over $3,000.  Contracts for commercially available off the shelf items, as well as federal contracts for food and agricultural products shipped as bulk cargo would not be subject to this requirement.  Secretary Napolitano indicated that she expects FAR to go into effect on September 8, 2009.

“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano.  “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce.  The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities.”

Also on July 8, 2009 the U.S. Senate approved an amendment to the Homeland Security appropriations bill, introduced by Senator Jeff Sessions (R-AL) that would extend the E-Verify program until September 30, 2012.  In addition, the Sessions amendment would mandate the requirement that federal contractors use E-Verify without the exceptions noted above.