On Jun 15 2009

No-Match Regulation Delayed Again

On June 10, 2009 the Department of Justice (“DOJ”) filed a request with the U.S. District Court for the Northern District of California for an extension until July 10, 2009 to file a memorandum in support of lifting the injunction against the implementation of the Social Security No-Match regulation.  DOJ also requested an extension for filing its response to the plaintiffs’ motion for summary judgment.

In August 2007, a group of immigrant rights organizations as well as business and employer groups asked the federal court to enjoin the regulation from taking effect.  In October of that year, a federal judge granted a preliminary injunction.  Since that time the case has been in litigation.

Since taking office, Department of Homeland Security Secretary Janet Napolitano has requested the court to grant several extensions of time so that the government could prepare their pleadings in the case.  According to court records, the extensions are aimed at providing Secretary Napolitano with sufficient time to review the regulation in the “context of the Obama Administration’s overall immigration enforcement policies.”  Since the Obama Administration took office they have taken a step back from the Bush Administration’s focus on enforcement actions against unauthorized aliens.  Rather, they have stated that their top immigration enforcement priorities are towards employers who hire unauthorized workers in violation of federal immigration law.

The Social Security No-Match regulation provides that an employer’s failure to take reasonable steps after receipt of a Social Security No-Match letter can lead to a finding that an employer had “constructive knowledge” of the fact that an employee is an unauthorized alien.  Under the Rule, employers would be exposed to increased liability if they fail to take a prescribed course of action termed a “safe harbor” upon receipt of a no-match letter.

The rule, while temporarily prevented from going into effect by a federal court in California, in many ways is only a codification of obligations employers have had since 1986.  The Rule requires employers to take certain affirmative steps to resolve questions about an employee’s employment authorization; if the employer fails to take those steps, it can be found to “know” that the employee was not authorized.