Court Halts Implementation of Department of Homeland Security "Safe Harbor" Regulation on "No-Match" Letters

Volume 6, Issue 6
September 18, 2007

On August 31, 2007, a federal district court in California issued a temporary restraining order preventing, at least temporarily, implementation by the Department of Homeland Security (DHS) and Social Security Administration (SSA) of the Final DHS rule entitled "Safe-Harbor Regulations for Employers Who Receive a No-Match Letter" relative to an employee's social security number.

This regulation was to have become effective on September 14, 2007. The Department sought to provide a route to eliminate and resolve innocent mismatches but, where the mismatch could not be resolved and issues arose in verifying lawful work status, will provide employers with "constructive knowledge" of an employee's lack of authorized work status. DHS noted, in its comments to the Rule, that one potential cause of the mismatch may be the use by an alien who is not authorized to work in the US, but who is working on a false social security number or a number assigned to another person. A no-match letter may be one indicator to an employer that an employee may be an unauthorized alien. By setting out when "constructive knowledge" appears, this Rule will place pressure on an employer to terminate an employee where work status cannot be verified.

The regulation will provide, when enforced, needed guidance for employers who receive a "No-Match" letter from the SSA indicating data in that agency's records does not match data forwarded by employers. The regulation provides steps for employers to confirm the accuracy of the employer's records, including such items as obtaining input from the employee and requesting the employee to resolve the issue with the SSA, and verification with the agency. If none of the other steps resolves the matter within 90 days, among other steps the employer is to complete a new I-9 form that does not rely upon any document that uses the questionable social security number. Failure to be able to complete this process provides, in specified circumstances, "constructive knowledge" of the lack of legal work status and likely, ultimately, to termination of the employee.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.