DHS Reissues Proposed No Match Letter Regulation

Many employers have received letters from the Social Security Administration advising the employer that the names and Social Security numbers of certain employees do not match. Employers have long wondered how they are supposed to respond to these "no match letters." In August 2007, the Department of Homeland Security (DHS) issued a regulation setting forth a protocol for employers to follow to avoid liability for knowingly employing unauthorized foreign workers. If an employer follows the procedures and timeframes set forth in the regulation, the employer would avoid liability resulting from receipt of the no match letter.

Before the regulation became effective, it was challenged in court and the effectiveness of the regulation was stayed. Among other things, the challengers alleged that DHS failed to provide required justification for the regulation. The court stayed the litigation until March 2008 to allow DHS to undertake a new rulemaking to address issues raised in the litigation.

On March 21, 2008, DHS issued its supplemental proposed regulation. The supplemental proposal contains essentially no substantive changes to the regulation. DHS did provide more detail about its justifications for the rule, as required by the court. DHS will now seek to have the court dissolve the preliminary injunction and allow the no match regulation to move forward.