Obama Administration's Position on the Social Security No-Match Rule Still Under Debate

The injunction blocking implementation of the Department of Homeland Security's Safe Harbor Procedures for Employers Who Receive a No-Match Letter from the Social Security Administration (SSA) will remain in force until at least June 10, 2009, a new court-mandated deadline for DHS to submit briefs in on-going litigation addressing the safe harbor rule.

The resolution of the litigation challenging the safe harbor rule promulgated by the Bush Administration was delayed again as the Obama Administration continues its review of the rule.

The litigation involves a Department of Homeland Security (DHS) final rule issued in August 2007, which was challenged in federal court before it went into effect. The rule has been subject to a preliminary injunction while the lawsuit is pending in the U.S. District Court for the Northern District of California. If implemented in its current form, 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.

In late 2008, the Bush Administration filed a motion to lift the injunction following the issuance of a supplementary rule intended to address the court's concerns. DHS was due to file its first briefs in support of the rule under the Obama Administration on February 9, 2009, but requested and received a 60-day extension to April 10, 2009. On April 7, DHS requested a second 60-day extension. The court granted the 60-day extension on April 9, setting the new deadline at June 10, 2009.

In its motion, DHS stated an additional extension of time is needed as Secretary Janet Napolitano continues to review the safe harbor rule in the context of the Obama Administration's overall immigration enforcement policy. The motion indicated that DHS is evaluating numerous options, including whether to maintain the rule in its current form, or to seek amendment or repeal. To date, the Obama Administration has not provided any indication as to its position on the rule.

For additional background, please see previous articles on this lawsuit (links on the left-hand side of this screen).