Federal Judge Blocks DHS 'No Match' Letter Regulation

A federal judge has issued a preliminary injunction barring the Department of Homeland Security (DHS) from implementing its "no match" regulation that was originally set to take effect on September 14, 2007. The preliminary injunction also halts SSA/DHS from issuing notices of the new regulation to 140,000 employers across the country.

If implemented, the regulation would have required employers to take specific steps when receiving a Social Security Administration (SSA) no match letter to ensure compliance with legal hiring requirements. Under the rules, employers would have been required to take steps to resolve any SSA or immigration document discrepancies within 93 days. If a discrepancy could not be resolved within this period of time, employers would be required to terminate the employment of affected employees or risk liability for knowingly hiring or continuing to employ individuals who are unauthorized to work in the United States.

The preliminary injunction comes after U.S. District Judge Charles R. Breyer of San Francisco had extended for 10 days a temporary restraining order stopping implementation of the regulation, citing the need for more time to make a decision. In a 22-page ruling, Judge Breyer said the plaintiffs, a consortium of unions and business groups, "convincingly argue that the balance of hardships tips sharply in their favor because altering the status quo would subject employers to greater compliance costs and employees to an increased risk of termination, while imposing significantly less burdens on the government.

Had the preliminary injunction not been granted, SSA had planned to mail approximately 140,000 no match letters to employers, pertaining to approximately 8 million employees. Judge Breyer specifically noted, however, that the no match letters are based on SSA records that include numerous errors.

DHS Secretary Michael Chertoff expressed disappointment with the decision and said the administration was considering an appeal. For now, the injunction is binding until the case goes to trial, a proceeding that is likely many months away. We will continue to monitor this issue and provide you with the latest updates as they become available. In the interim, please do not hesitate to contact us, should you have questions or concerns about how the DHS regulation could affect your responsibilities in verifying workers' employment authorization.