Alerts and Updates

Social Security "No-Match" Regulation Update - DHS Requests Time to Conduct a New Rulemaking

November 29, 2007

The U.S. District Court for the Northern District of California has granted a Department of Homeland Security (DHS) motion which will stay proceedings until March 1, 2008, to permit DHS to undertake a new rulemaking effort that will address the court's concerns with its regulation on Social Security Administration (SSA) no-match letters. In its motion, DHS indicated that it expects to complete the rulemaking proceedings by March 2008.

The current rule was to take effect on September 14, 2007. However, on October 10, 2007, the federal district court for the Northern District of California granted a preliminary injunction, blocking implementation of the rule. As currently written, the rule would affect millions of employees. In granting the preliminary injunction in October, the court determined that the plaintiffs, which included both unions and business groups, had raised sufficient concerns regarding the no-match process such that injunctive relief was appropriate to prevent irreparable harm. These concerns include the possible termination of lawfully employed workers based on incorrect SSA records. The court further held that the threat of criminal prosecution included in the no-match rule's "safe harbor" provision reflects a major change in DHS policy, and that DHS failed to follow mandated administrative requirements to effect the change. The recent motion filed by DHS requested additional time to undertake a rulemaking effort that would address these concerns.

In the court's decision granting the motion, it confirmed that the preliminary injunction barring DHS from implementing or enforcing the rule will remain in effect at this time.

For Further Information

If you have any questions about this Alert or would like assistance in developing a policy for no-match letters, please contact any of the attorneys in our Employment & Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.