The U.S. Department of Homeland Security (DHS) is to publish a final rule today in which it formally rescinds the August 2007 "No-Match / Safe Harbor" regulation. Following its review of public comments after the August 19, 2009 announcement of the proposal to rescind the No-Match / Safe Harbor regulation, DHS now confirms that the rescission will take effect in 30 days. In the final rule, DHS responds to various arguments for and against the safe harbor provisions. The general tenor of DHS' position is that it plans to continue its I-9 enforcement activities. At the same time, DHS encourages employers to take proactive measures to comply with I-9 employment eligibility verification requirements. DHS suggests that the No-Match protocol is a reactive approach to employment authorization verification. In contrast, according to DHS, employers can be more proactive by participating in programs such as E-Verify and IMAGE and following the guidance set forth in the I-9 Handbook for Employers (Form M-274, available at www.uscis.gov).

As outlined in our August 20, 2009 posting, there are advantages and disadvantages for employers to consider before enrolling in the E-Verify or IMAGE programs. Employers also need to be aware that DHS' rescission of the No-Match / Safe Harbor regulation does not alter the I-9 landscape. Employers need to continue to follow proper protocols in verifying the work authorization status of their employees. Employers also need to take immediate and reasonable steps to inquire further upon receiving credible information that an existing employee may not have authorization to work in the United States.