Social Security Mismatch Rule And The New I-9

Originally published December 31, 2007

Controversy Over Social Security Mismatch Rule Continues New

I-9 Form Becomes Mandatory

On December 5, 2007, the Department of Homeland Security (DHS) filed an appeal on the preliminary injunction granted by the U.S. District Court on October 10, which prevented the implementation of the new August 2007 "Safe-Harbor Procedures for Employers Who Receive a Mismatch Letter" Rule. The Rule created rigorous measures for employers when in receipt of a mismatch notification and increased liability for failing to follow specific "safe harbor" procedures. According to DHS, the appeal affirms that it has no plans of abandoning the new 'nomatch'

Rule.

This appeal follows DHS' November 23, 2007, request to the district court to put on hold the lawsuit related to the Rule until a new final rule is issued - or until March 24, 2008, whichever comes first - to permit DHS' new rulemaking efforts. DHS had then asserted that its next new rule will address the court's concerns with the current regulation.

Since DHS' request to suspend the Rule was not met favorably, it filed the appeal on the preliminary injunction.

In a December 5 statement announcing the appeal, DHS Secretary Michael Chertoff confirmed that DHS is, in fact, trying to revise the new 'no-match' rule to make it acceptable to the court, while simultaneously trying to overturn the court's injunction through the appeal. DHS has stated that its intention by pursuing both paths simultaneously is to obtain a resolution as quickly as possible. Once DHS revises the rule, it may ask the court to vacate the preliminary injunction.

Originally scheduled to take effect on September 14, 2007, the rule created strict procedures for employers to follow in response to a no-match letter from the Social Security Administration (SSA) or Immigration and Customs Enforcement (ICE). In October, the court issued a preliminary injunction that prevented the government from implementing the new rule and stopped the SSA from its planned transmission of its new no-match notices, which incorporated these new procedures, to employers. The court based its decision to grant the injunction on its opinion that implementing the new rule would cause irreparable harm to employers and workers.

If DHS' appeal is successful, the original August 2007 "Safe-Harbor Procedures for Employers Who Receive a Mismatch Letter" Rule would become effective immediately. Please see our October 2007 Alert for...