On August 15, 2007, the Department of Homeland Security issued its final regulations concerning no-match letters that employers were to receive from the Social Security Administration. The regulation was to become effective on September 14 and employers were expecting to receive thousands of no-match letters. The final regulations, which differed from the proposed regulations, explained the steps employers should take in response to receiving the no-match letters. See Immigration Alert issued by the Firm’s Immigration Practice Group on August 30, 2007 (http://www.masudafunai.com/eng/legalupdates/?a=false&cid=2&aid= 7).
On August 31, 2007, a federal judge prevented the regulations from becoming effective. The California federal judge issued a temporary restraining order against the Department of Homeland Security and the Social Security Administration. Under the order, they are restrained from implementing the regulations. In addition, the judge restrained the Social Security Administration from mailing out to employers the no-match letters. The parties to the case will meet for a hearing on October 1. Until then, employers will not receive any no-match letters.
Employers should continue to follow the actions they have always followed when completing Form I-9. As the federal government advises on its website, “the employer must examine the document(s) [submitted to the employer when completed Form I-9] and accept them if they reasonably appear to be genuine and to relate to the employee who presents them.” When examining these documents, employers “are held to a reasonableness standard.” If an employer has actual or constructive knowledge that an employee is not authorized to work in the United States, the employer must terminate that employee’s employment. When making this decision, legal advice should be sought to avoid claims of discrimination based upon national origin or race.