Bush Administration Proposes No-match Mandates Be Reissued
The Bush Administration today reissued proposed rules that seek to increase enforcement of immigration laws. These measures contain significant changes, including mandatory procedures that employers will have to follow after receiving "no-match" letters and subsequent penalties if they fail to do so.
The public is invited to comment on the proposed rules online through April 25, 2008, by going to the Federal eRulemaking Portal: http://www.regulations.gov. Comments should be identified by DHS Docket No. ICEB 2006-0004.
Rules dictating employer actions upon receipt of a "no-match" letter were initially issued in August, 2007, but were blocked by court action that found serious failures of content and procedure in their issuance. The new rules are essentially the same as those issued previously.
New rules issued by the U.S. Department of Homeland Security require employers to take certain actions upon receipt of a "no-match" letter. If the employer does not take these actions, or if the employee continues to work without correcting the discrepancies, the employer may be considered as having the knowledge they are employing personnel not authorized to work in the United States and be subject to prosecution.
In the past, the Social Security Administration (SSA) emphasized that a "no-match" letter "does not imply that you or the employee intentionally provided incorrect information. These letters do not make any statement about an employee's immigration status and are not a basis, in and of themselves, for taking any adverse action against an employee."
Specific actions required by employers will be included in all future "no-match" letters. Guidance has not yet been issued by the U.S. Immigration and Customs Enforcement (ICE). However, the final rule can be found on the ICE Website: http://www.ice.gov/doclib/finalsafe.pdf.
In another stark departure from past policy, the U.S. Department of Justice (DOJ) has issued guidance that notes employers may terminate employees that are the subject of no-match letters if proper procedures are followed. The guidance can be found on the DOJ's Website at:
http://www.usdoj.gov/crt/osc/htm/Nomatch032008.htm.
For more information, contact AH&LA Senior Vice President for Governmental Affairs Shawn McBurney at (202) 289-3123 or smcburney@ahla.com.
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