Employers need not worry about implementing the Department of Homeland Security’s (DHS) Social Security “No-Match” protocol for a few more months. Reports indicate that a court injunction preventing implementation of the DHS’ No-Match regulation will not be reviewed until March of 2009 (after the Obama Administration takes control and perhaps reviews whether the rule will be implemented). For a discussion of the injunction prohibiting enforcement of the No-Match rule, see Ogletree Deakins’ October 12, 2007 E-Alert.
The proposed No-Match rule would require employers to follow a specific protocol during the 90-day period following receipt of a letter from the Social Security Administration (SSA) informing the employer that the Social Security numbers reported for certain employees on Form W-2 do not correspond with the name found in SSA’s records. Employers that follow the protocol would have a safe harbor from the No-Match letter being used against them in an enforcement action.
To recap the history of the No-Match rule:
- August 2007 – DHS publishes the No-Match regulation;
- September 2007 – Temporary injunction issued preventing enforcement of the No-Match rule;
- October 2007 – Preliminary injunction issued extending the prohibition on enforcement of the No-Match rule;
- March 2008 – DHS issues a Supplemental Proposed Rule to address the concerns of the court as noted in the preliminary injunction; and
- October 2008 – DHS issues a Supplemental Final Rule and requests the preliminary injunction be lifted.
Thus, as of today the No-Match rule is still not in effect. Employers are still encouraged to revisit their immigration compliance procedures as we await a final outcome of the No-Match litigation, as the government continues to increase immigration enforcement activities.
In other federal immigration compliance news, employers are reminded that the new regulation requiring certain federal contractors to participate in E-Verify will become effective on January 15, 2009. For a review of the new regulation, see the Ogletree Deakins’ E-Alert issued on November 14.
Note: This article was published in the December 2008 issue of the Immigration eAuthority.