DHS Retracts Controversial No-Match Rule
Posted Oct 30, 2009
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The U.S. Department of Homeland Security (DHS) issued a Federal Register notice on October 7, 2009, formally rescinding its proposed rule on no-match letters. The issuance of no-match letters from the Social Security Administration to employers, when Social Security numbers (SSNs) did not match their database, has been the topic of much debate; as has the DHS's effort to use the no-match to hold employers accountable. The DHS will now increase focus on the E-Verify system to enforce work authorization requirements, instead of the no-match letter strategy. This issue was explained in our July 17, 2009 article, DHS to Withdraw No-Match Rule.
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DHS and the No-Match Regulation Controversy
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Had the no-match regulation been implemented, employers would have faced potential prosecution for failure to terminate employees whose names and SSNs did not match in a federal database. The controversial rule was scrapped amid legal challenges, driven by concerns about the accuracy of the database, which could generate no-match letters on the basis of routine clerical spelling discrepancies, unrecorded name changes, and similar variations. Opponents feared that even U.S. citizens and permanent residents could lose their jobs on the basis of erroneous no-match letters.
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DHS Reasoning for Retraction of No-Match Rule
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In the Federal Register, the rationale given by the DHS for retracting the no-match rule, noted that "a more appropriate utilization of DHS resources would be to focus enforcement / community outreach efforts on increased compliance through improved verification, including increased participation in the U.S. Citizenship and Immigration Services (USCIS) E-Verify employment eligibility verification system, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs."
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Conclusion
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The final rule, rescinding the no-match provisions, will take effect November 6, 2009. The DHS's justification was resource utilization, but clearly this proposed regulation would not have died out without the concerted legal battle that resulted in preventing its scheduled implementation since 2007. Many other compliance and enforcement measures continue to expand, and employers must remain vigilant regarding Form I-9 and other immigration-related hiring requirements.