On October 10, 2007 Judge Charles Breyer of the US District Court of Northern California granted a motion to issue a nationwide preliminary injunction barring the US Department of Homeland Security (DHS), Bureau of Immigration and Customs Enforcement (ICE), from enforcing the so-called "no-match" rule, which was scheduled to take effect on September 14. The rule had previously been subject to a temporary restraining order issued by the court in August. Absent a reversal by the Circuit Court of Appeal, the rule will not go into effect until a final hearing is conducted on its legality.

The injunction comes after DHS published a final rule to amend the regulations on the unlawful hiring or continued employment of unauthorized aliens. The amended regulation describes the legal obligations of an employer that receives a "no-match" letter from the Social Security Administration (SSA) or the DHS. (See our previous Labor & Employment Alert.) The regulation recommends "safe-harbor" procedures an employer can take to resolve the "no-match" and, if it cannot be resolved within a maximum of 93 days, verifying again the employee's identity and employment authorization through the I-9 process.

A final hearing on the rule is not expected to take place until next year. Despite this preliminary injunction, the SSA is free to issue "no-match" letters, employers remain subject to employment authorization and I-9 compliance procedures under the Immigration Reform Control Act of 1986, and ICE continues to conduct worksite enforcement actions. Therefore, employers are encouraged to implement policies to address "no-match" letters and periodically conduct internal I-9 compliance audits.