On Oct. 23, U.S. Secretary of Homeland Security Michael Chertoff announced 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 the supplemental
final rule, titled “Safe Harbor Procedures for Employers Who Receive a No-Match
Letter: Clarification; Final Regulatory Flexibility Analysis,” will be published
in the Federal Register during the week of Oct. 27. If implemented, the regulation
would require employers to terminate workers who receive Social Security Administration
no-match letters if discrepancies can not be resolved within 90 days.
NRCA members are advised that DHS’ supplemental final rule will not take effect
until U.S. District Court Judge Charles R. Breyer lifts the legal injunction that
currently blocks implementation of the regulation. It is unclear when or if the
court’s injunction will be lifted, and, therefore, it is uncertain when or if the
supplemental final rule will become effective.
The supplemental final rule contains no substantive changes from DHS’ Final No-Match
Rule published in August 2007, which was subsequently blocked by the court injunction
that NRCA requested as a litigant. As such, NRCA continues to strongly oppose implementation
of the regulation, consistent with its comments filed with DHS during previous regulatory
proceedings on this matter.
Given that the supplemental final rule contains no substantive changes to previous
versions of the regulation and, therefore, does not address concerns about its effect
on employers and workers raised by NRCA and others, NRCA continues to work with
other litigants to ensure the injunction is not lifted. The timeframe for the continued
legal proceedings in this matter is highly uncertain but could take several months
or longer and could proceed beyond the tenure of the Bush administration.
NRCA will continue to keep members promptly informed of any new developments regarding
the no-match rule litigation. If you have any questions or need more information,
please contact NRCA’s Senior Director of Federal Affairs Duane Musser at (202) 546-7584