Homeland Security Defends ‘Safe Harbor' Argument in Supplemental Rule

The supplemental rule primarily responds to legal challenges blocking the proposed safe harbor rule—and further asserts DHS authority to investigate and pursue sanctions against employers who knowingly hire unauthorized workers.

If promulgated, the safe harbor rule will require all U.S. employers to resolve Social Security Employer Correction Requests, commonly known as "no-match" letters or notices, according to set guidelines and timetables. Employers who fail to fire workers who are unable or unwilling to resolve Social Security number discrepancies could face liability for employing unauthorized foreign workers.

Questioning whether DHS had satisfied regulatory flexibility analysis requirements for the dramatic policy change—which would include adding language to no-match letters about possible noncompliance sanctions—a federal judge blocked implementation of the proposed rule last October. The Social Security Administration has discontinued sending no-match letters until the lawsuit is resolved.

DHS Bolsters Case for Enforcement Action

DHS responds directly to the preliminary injunction in the supplemental rule—and documents its authority to determine what evidence it will rely on in pursuing sanctions against employers. In this case, employers who do not respond to no-match letters could be found to have "constructive knowledge" of immigration violations.

The agency says the proposed rule is warranted based on overwhelming consensus that Social Security no-matches are a "legitimate indication" of possible unauthorized employment.

The proposed rule, according to DHS, would establish bright-line procedures employers should follow when they receive Social Security no-match notifications. It would also provide greater predictability in how the constructive knowledge standard will be applied by the government as it relates to Social Security no-matches.

Immigration and Customs Enforcement could pursue sanctions against employers who do not comply with no-match letter procedures.

Further Obstacles Likely for Proposed Rule

Labor unions and business groups believe the proposed rule would have a catastrophic effect on U.S. companies. If fully implemented and enforced, it could lead to dismissal of hundreds of thousands of workers. Small documentation errors could also lead to unfair dismissal of thousands of legal immigrants, opponents argue.

In addition to the AFL-CIO, ACLU, National Immigration Law Center and U.S. Chamber of Commerce—which brought the suit last year against DHS and the SSA—a broad alliance of organizations is expected to continue litigation to block implementation of the proposed rule.

Amid this diverse and widespread opposition, it is by no means certain the proposed rule will be implemented in 2008.