Today, the Department of Homeland Security (DHS) published a Supplemental Proposed Rulemaking to the original Social Security No-Match regulations published in August of last year.  The Proposed Rulemaking makes no substantive changes to the August 2007 regulations.  Instead, it merely addresses issues cited in a decision of the U.S. District Court for the Northern District of California which enjoined enforcement of the August 2007 No-Match rules. 

History of the No-Match Regulations

The No-Match regulations were originally released on August 15, 2007, and were scheduled to take effect on September 14, 2007.  The regulations set forth a procedure for employers to follow after receipt of a “No-Match” letter from the Social Security Administration (SSA).  Employers that ignored the No-Match letters could face liability for “knowingly” employing unauthorized aliens.  Employers that followed the prescribed procedures could avail themselves of a “safe harbor” and potentially avoid liability. A lawsuit seeking to enjoin enforcement of the regulations was filed in late August 2007.  The District Court issued an injunction preventing implementation of the No-Match regulations pending the outcome of the suit in October 2007.

The Newly-Published Supplemental Proposed Rule

In short, the Supplemental Proposed Rulemaking makes no changes to the status quo.  The No-Match rules are not yet in force and the lawsuit challenging its validity remains in process.  In its Proposed Rulemaking, DHS simply addresses the concerns of the District Court in the format required by the Administrative Procedures Act.  DHS Secretary Michael Chertoff is hopeful this will clear the path to a speedy resolution of issues raised in the lawsuit and allow the No-Match rules to serve as “an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need.”

While the government’s plan to implement new procedures for No-Match letters remains delayed, employers should continue to watch for new developments.  According to Ogletree Deakins’ Shareholder Jay Ruby: “The DHS is clearly focused on increasing enforcement.  It is still a good time for employers to review their I-9 forms, procedures and overall immigration compliance policies.  While the Proposed Rulemaking is merely a procedural step and adds nothing to employers’ existing responsibilities, you should be prepared for the possibility of adopting the No-Match rules’ safe harbor procedures for handling Social Security No-Match letters before the end of the year.”  

The Proposed Rulemaking allows for a 30-day comment period.  The DHS announcement and the complete 44-page Supplemental Proposed Rulemaking can be found at

Additional Information

Ogletree Deakins will continue to post updates as new developments occur.  For further background and a history of the No-Match regulations, see the Ogletree Deakins e-Alerts dated August 10, 2007, September 4, 2007, October 2, 2007 and October 12, 2007.  If you would like advice on your company’s current I-9 procedures and receipt of notices from the SSA or DHS, please contact your Ogletree Deakins immigration counsel or the Client Services Department via email at or by phone at 1-866-287-2576.

Note: This article was published in the March 24, 2008 issue of the Immigration eAuthority.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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