The Department of Homeland Security (DHS) recently issued a Supplemental Final Rule that reaffirms its Supplemental Proposed Rule published on March 26, 2008 and attempts to clarify its August 2007 Final Rule regarding an employer's legal obligations upon receiving a No-Match letter from the Social Security Administration (SSA) and offers employers a safe harbor from future enforcement action. A no-match letter is a letter that is typically issued by the SSA or ICE which indicates that a particular employee's (or employees') reported social security numbers do not match the relevant agency’s records about that employee. Described as the Final Regulatory Flexibility Analysis Act, the Act seeks to provide clear guidance for employers on how to comply with the statutory bar against hiring or continuing employment of aliens who are not authorized to work in the United States. The final rule does not make any substantive changes from the August 2007 Final Rule or the Supplemental Proposed Rule of March 2008. The DHS has corrected a technical cross-reference in the text of the final rule.

On October 10, 2007, a judge enjoined the implementation of the Final Rule. The March 2008 supplemental proposed rule re-promulgated the Final Rule with very minor modifications while attempting to address the main concerns of the court in its order enjoining DHS from enforcing the Rule. In the latest supplemental rulemaking, DHS seeks to further clarify two aspects of the August 2007 Final Rule. First, the rule instructs employers seeking the safe harbor that they must promptly notify an affected employee after the employer has completed its internal records checks and has been unable to resolve the mismatch. The DHS reaffirms that the prompt notification requirement is satisfied if the employer contacts the affected employee within five business days after the employer has completed its internal records review. Second, the plaintiffs in the litigation before the Northern District of California raised a question as to whether under the August 2007 Final Rule, an employer could be found liable on a constructive knowledge theory for failing to conduct due diligence in response to the appearance of an employee hired before November 6, 1986 in a SSA no-match letter. The DHS clarifies that the Final Rules do not apply to employees hired before November 1986.

The DHS continues to be enjoined from implementing the Final Rules until the court lifts the injunction or issues a final decision on the pending lawsuit. It is assumed that the SSA will not send any letters until the federal lawsuit is settled.