On October 23, 2008, DHS announced the issuance of the Final Supplemental Rule in furtherance of the No-Match Safe Harbor Regulations published in August of 2007. As readers may recall, those regulations gave employers a procedure to follow in responding to "No Match" letters issued by the Social Security Administration. Following the procedure would allow employers and managerial employees to avoid the risk of prosecution for having "constructive knowledge" that an employee on the no match list was not authorized to work in the United States.
As readers may also recall, the implementation of the "No-Match " rule was enjoined by the Ninth Circuit Court of Appeals in response to a lawsuit brought by labor, immigrant, and business groups. The Supplemental Rule was issued to meet many of the issues the Court found with the No-Match regulations. DHS considered the many comments submitted but did not substantively change the regulation text. Only the supporting explanation was augmented to attempt to meet the Court’s concerns. Secretary Chertoff expects the Rule to be published in the Federal Register "in the coming weeks." DHS will also present the Final Supplemental Rule to the Court in an effort to have the Court lift the injunction. Stay tuned.