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DHS attempts to implement final rule on no-match letter regulation

On Oct. 23, U.S. Secretary of Homeland Security Michael Chertoff announced that the Department of Homeland Security (DHS) is moving forward in an attempt to implement a Supplemental Final Rule on its proposed no-match letter regulation. It is expected that the Supplemental Final Rule, "Safe Harbor Procedures for Employers Who Receive a No-Match Letter: Clarification; Final Regulatory Flexibility Analysis," will be published in the Federal Register this week. If implemented, the regulation would require employers to terminate workers who receive Social Security Administration no-match letters if discrepancies cannot be resolved within 90 days.

DHS's Supplemental Final Rule will not take effect until U.S. District Court Judge Charles R. Breyer lifts the legal injunction that currently blocks the regulation's implementation. It is unclear when or if the court's injunction will be lifted and, therefore, uncertain when or if the Supplemental Final Rule will become effective.

The Supplemental Final Rule contains no substantive changes from DHS's Final No-Match Rule published in August 2007, which was subsequently blocked by the court injunction that NRCA requested as a litigant. As a result, NRCA continues to strongly oppose the regulation's implementation, which is consistent with its comments filed with DHS during previous regulatory proceedings regarding this rule.

Given that the Supplemental Final Rule contains no substantive changes to previous versions of the regulation and does not address concerns raised by NRCA and others about the rule's effect on employers and workers, NRCA continues to work with other litigants to ensure that the injunction is not lifted. The time frame for the continued legal proceedings regarding this rule is highly uncertain but could take several months or longer and proceed beyond the tenure of the Bush Administration, which will end when a new president is inaugurated Jan. 20, 2009.

NRCA will continue to keep members promptly informed of any new developments regarding the no-match rule litigation during the weeks and months ahead. If you have any questions or need more information about this issue, please contact NRCA Senior Director of Federal Affairs Duane Musser at (202) 546-7584 or dmusser@nrca.net.

10/27/2008