On October 7, 2009, the U.S. Department of Homeland Security (DHS) published a regulation rescinding its “nomatch” regulation, promulgated on August 15, 2007. No-match letters are sent to employers by the Social Security Administration (SSA) informing employers that an employee's Social Security Number (SSN) does not match the SSA’s records. The rule, which was to take effect on September 14, 2007, was immediately challenged in Federal Court. A U.S. District Court judge issued a temporary restraining order enjoining the government from implementing the final rule. Subsequently, on October 23, 2008, the DHS issued a supplemental final rule which instructed employers to take specific steps to resolve the “no-match” discrepancy within a certain period of time to benefit from the safe harbor protection the rule offered. After years of litigation challenging the constitutionality of the rule, the new regulation rescinding the rule finally puts this matter to rest.
In the final regulations rescinding the previous regulations, the DHS sated that: "After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs."
While the no-match regulation has been rescinded, the DHS cautioned that employers who receive no-match letters, must take reasonable steps to check its records, follow up with the affected employee and give the employee sufficient time to resolve the discrepancy. The DHS also stated that the receipt of a no-match letter "when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of 'constructive knowledge'" by an employer. Consequently, employers must continue to resolve any SSN discrepancies in a reasonable manner otherwise they may face potential civil and/or criminal liability.