On October 10, 2007, a U.S. federal court judge issued a preliminary injunction, preventing implementation of the “no-match letter” program developed by the Department of Homeland Security.  The “no-match letter” program was designed to crack down on the employment of undocumented immigrants.  Under the proposed program, employers notified of a “no-match” can be "safely harbored" if they acted within 90 days to verify the employment eligibility and authenticity of the social security number/documentation presented by their affected employee.  Employers would potentially face significant civil fines, as well as criminal charges, for failure to comply with the program and for continuing to employ undocumented aliens.

For many years, employers have been receiving no-match letters from the Social Security Administration notifying them when an employee’s name or Social Security number listed on the employer’s W-2 form does not match the SSA’s records, but employers were not legally required to take any action because the “no match” letter alone was not considered sufficient ground that an employee did not have permission to work in the U.S.  There are many innocent reasons for such discrepancies such as clerical mistakes, name changes due to marriage and divorce, and the use of multiple surnames that are common in many parts of the world.  In fact, SSA files on more than 17 million workers contain errors.  The number of undocumented immigrants actually working in this country is around 8 million.  So potentially more than 9 million workers who are citizens or non-citizens legally authorized to work have defective SSA files.

The new regulation, which was initially proposed in June 2006 and finalized in August 2007, would have significantly increased employers’ responsibilities upon receiving such letters.  For example, under the new rule, employers receiving “no match” letters might be required to fire employees whose SSA discrepancies are not resolved within 93 days after the “no match” letter is received.  If the employer does not respond to a “no match” letter, Department of Homeland Security may conclude that the employer had “constructive knowledge” that an employee was not authorized to work in the U.S. and prosecute the employer accordingly.  Clearly, the “no-match letter” program could have significantly impacted not only the employees at risk of losing their jobs as a result of the program, but also the employers at risk of losing significant portions of their work force and exposed to severe civil and criminal sanctions.

The “no-match letter” program has been challenged in a lawsuit filed by the ACLU, the AFL-CIO and other labor groups claiming that the program violates the law and workers’ rights, imposes burdensome obligations on employers, and will cause discrimination against workers who are perceived to be immigrants.  Several other labor and business groups joined in the lawsuit to challenge the rule.

Shortly after filing suit, on August 31, 2007, the AFL-CIO and other labor advocates obtained a Temporary Restraining Order against the Department of Homeland Security, U.S. Immigration and Customs Enforcement, and the Social Security Administration, effectively blocking the government from sending notices of the new regulation to approximately 140,000 employers across the country and delaying the September 14, 2007 implementation of the biggest anti-employer regulations to impact U.S. businesses in over 20 years.

In line with the earlier ruling, the Court granted a preliminary injunction.  The Court held that the mailing of no-match letters to employers “would result in irreparable harm to innocent workers and employers.”  Today’s ruling extends that prohibition indefinitely until the court issues a final decision in the case after trial.