In a lawsuit filed by the AFL-CIO and immigration rights groups, a California federal trial judge has issued a temporary restraining order prohibiting the Department of Homeland Security (DHS) from mailing no match letter packets or taking any other action to implement its August 15, 2007 regulation entitled “Safe Harbor Procedures for Employers who Receive a No-Match Letter.”
In a lawsuit filed by the AFL-CIO and immigration rights groups, a California federal trial judge has issued a temporary restraining order prohibiting the Department of Homeland Security (DHS) from mailing no match letter packets or taking any other action to implement its August 15, 2007 regulation entitled “Safe Harbor Procedures for Employers who Receive a No-Match Letter.” See AFL-CIO v. Chertoff (N.D. Ca. Aug. 31, 2007).
As discussed in our August 14, 2007 Alert, the new regulation provides, among other things, procedures employers can follow when they receive no match letters from the Social Security Administration or a Notice of Suspect Documents from DHS. By following these procedures, employers will be effectively immunized from a finding by the DHS that the employer had constructive knowledge, based on the receipt of these documents, that the employee in question was not authorized to work in the U.S. The regulation is scheduled to take effect September 14, 2007.
In issuing the temporary restraining order, the court found that the plaintiffs “raised serious questions as to whether the new Department of Homeland Security Rule is inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration.” The court set a hearing date of October 1, 2007 for a preliminary injunction, which, if granted, will stop the implementation and enforcement of the regulation.
Employers’ Bottom Line:
What does this mean for employers? Even though the implementation and enforcement of the new DHS regulation and its specific guidance have been delayed temporarily, employers are still required, as they have always been, to respond in a reasonable manner to no match letters. In other words, if an employer receives a no match letter while the DHS regulation is enjoined or if it has received one in the past to which it has not responded, the employer should make every effort to take reasonable steps in responding to that letter. Employers should be aware that the issue of employment of illegal immigrants is a priority for DHS. Accordingly, employers should take steps to ensure that they have appropriate documentation for current workers and that they obtain such documentation for all newly hired employees. We will continue to keep you updated on the status of this regulation.
If you have any questions regarding no match letters or any employment related immigration issue, please contact Geetha Nadiminti, 404-888-3940, gnadiminti@fordharrison.com, or any member of Ford & Harrison’s Business Immigration Practice Group.