Federal Judge Issues Order Temporarily Blocking Implementation of The Department of Homeland Security's Social Security Number “No-Match” Regulation

On Friday, August 31, 2007, U.S. District Judge Maxine M. Chesney in the United States District Court for the Northern District of California issued an Order temporarily blocking implementation of the Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”) regulation on the legal obligations of an employer when it receives a “no­-match letter" from the Social Security Administration or a letter regarding employment verification forms from the Department of Homeland Security.

The regulation, which would have gone into effect on September 14, 2007, outlines a safe-harbor procedure for the employer to follow in response to such letters, but broadens the definition of “constructive knowledge” that an employee was unauthorized to work to include an employer’s failure to take reasonable steps in response to receiving written notice from the Social Security Administration (the no-match letter) or receiving notification from the Department of Homeland Security that documentation presented by an employee does not match its records.

“No-match” letters, which advise employers that the combination of name and social security numbers submitted to the Social Security Administration for an employee do not match the agency’s records, can often be the result of innocent factors such as typographical errors, name changes, and the use of multiple surnames.

Judge Chesney found that the regulation “raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with the statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration.”

The Order stays the regulation until October 1, 2007, at which time there will be a full hearing on the lawsuit filed by the American Federal of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union, the National Immigration Law Center, and the Central Labor Council of Alameda County (among other local labor movements) which initiated the action resulting in this temporary Order.