Court Rejects Government’s Request to Implement Social Security “No-Match” Rule Before Change of Administration

December 12, 2008

A federal judge in San Francisco has rejected a proposal by the Department of Homeland Security (“DHS”) for a schedule that could have resulted in a rule on employers’ responses to Social Security “no-match” letters taking effect before the end of the Bush administration. In October 2007, U.S. District Judge Charles Breyer issued an injunction blocking implementation of the rule. Last week, he set a schedule for DHS’s motions to lift the injunction that allows written submissions through February 24, 2009, over a month after the Obama administration takes office.

The rule, previously discussed in our August 13 and October 23, 2007 email articles, requires employers to take specific steps to rectify any social security number discrepancy identified in a letter from the Social Security Administration. It would require employers to terminate employees or face possible sanctions for employment of unauthorized workers unless the discrepancy was resolved or the affected employee provided other adequate documentation within 93 days of receipt of the letter.

Judge Breyer stated that the incoming Obama administration might want to look at this issue, suggesting that the new administration might abandon efforts to have the rule implemented. President-elect Obama has not taken any position on the rule.

On October 10, 2007, the federal court enjoined implementation of the rule because it found that the plaintiffs, a coalition of labor, civil rights and immigrant rights groups, had raised serious questions as to whether DHS had followed required rulemaking procedures and acted within its authority. DHS issued a supplemental rule over a year later, on October 28, 2008, designed to address these questions by rectifying procedural or other errors in prior rulemaking. DHS then filed motions arguing that with the issuance of the supplemental rule there remained no reason to continue the injunction. DHS asked for quick action on its motions. Judge Breyer refused.

The fate of the no-match rule is now in question, as the new Obama administration must decide whether to continue efforts to implement it or withdraw it.