The U.S. Department of Homeland Security (DHS) recently proposed a regulation to rescind its previous final regulation which would make the receipt of a "No Match" letter from the Social Security Administration (SSA) constructive knowledge that the employer may have hired a foreign national who is not authorized to work in the United States. The previous regulation also established a "safe harbor" procedure for an employer to reduce its liability upon receipt of such a letter. After the previous regulation was introduced, a lawsuit was filed against the DHS to prevent it from implementing the previous regulation. A court granted a temporary restraining order against the implementation of the previous regulation which is still effective today.
DHS indicated that it is releasing the current proposed regulation because it has determined that a more appropriate utilization of DHS resources would be to focus enforcement/community outreach efforts on increased employer compliance through the U.S. Citizenship and Immigration Services' (USCIS) E-Verify system, Immigration and Customs Enforcement's (ICE) Mutual Agreement Between Government and Employers (Image) and other programs.
Although this is a proposed regulation, the Obama Administration has indicated that it would like to finalize the regulation to reinstate the provisions of the employment eligibility verification regulation as they existed before the previous regulation was finalized. However, a bill has passed the Senate which would require DHS to implement the previous regulation and thus nullify this proposed regulation. Although this bill has passed the Senate, it still has to be reconciled with another bill that did not contain the provision which passed the House. It is assumed that the reconciliation process of the two bills will occur in September 2009.