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Jordan Schrader Business Alert - DHA No-match 032508
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Jordan Schrader Business Alert!

The Other Shoe Has Dropped

DHS tries again to punish employers with controversial No-Match Rule

THE DETAILS

Written by Ronald G. Guerra, member of Jordan Schrader Ramis's Employment Law practice group. Ron can be reached at 503-598-5540.

Last August, the Department of Homeland Security (“DHS”) published a Final Rule known as the “No-Match” regulation. That rule was part of a government effort to crack down on employers who knowingly hire illegal workers. In cases where an employer has a significant number of employees with inaccurate personal identity information, employers may be held liable if they ignore the "No Match" problems by failing to take specified steps within 90 days of receiving the letter.

Soon after publishing the Final Rule, a consortium of business and unions filed a lawsuit and obtained a preliminary injunction prohibiting the DHS from implementing the new regulations. Subsequently, the DHS received court authorization to suspend the lawsuit pending DHS action to issue new supplemental rules to address the legal defects of the August 2007 Final Rule.

DHS dropped the other shoe this past March 21, 2008, when it released its long awaited supplemental proposed rule for safe harbor provisions for employers who receive a no-match letter. This new supplemental rule will be formally published in the Federal Register sometime during the week of March 24, 2008. The public will have 30 days to comment on the new rule. The implementation date for the Final Rule, as amended, will await further court review and a court hearing is scheduled for Friday, March 28, 2008.

Unfortunately, the DHS made no substantive changes to the Final Rule as originally published. Instead the DHS made only minor changes.

The first change is that an employer would have to notify an employee of a no-match within five days after the employer completes its internal document review after receiving a no-match letter notice. The second change is that the Final Rule does not apply to any person hired prior to November 6, 1986. This means that the August 2007 Final Rule will be implemented substantially as issued if the district court accepts the DHS supplemental proposed rule.

In unveiling the supplemental rule, DHS Secretary Chertoff wrote that DHS “proposes to repromulgate, without change, the regulations published last August at 72 FR 45611, as 8 CFR 274a.1(l).

In the press release announcing the supplemental rule Secretary Chertoff said,

“We are serious about immigration enforcement. The No-Match Rule is an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need. This supplement specifically addresses the three grounds on which the district court based its injunction. We have also filed an appeal and are pursuing these two paths simultaneously to get a resolution as quickly as possible.”

What is clear is that the DHS, through its Immigration and Customs Enforcement (“ICE”) department, fully intends to aggressively enforce the immigration laws against employers. The DHS has not softened or backed off its stated position that a Social Security Administration (“SSA”) no-match letter provides notice to an employer that it may be employing unauthorized illegal workers and must take corrective action. An employer who receives a no-match letter and fails to take advantage of the safe-harbor provisions of the rule will be found to have “constructive knowledge” that the employer is employing illegal aliens.

Employers are cautioned to take all reasonable steps to ensure compliance with the immigration laws. For a more complete analysis of the supplemental proposed rule, see the DHS Supplemental Proposed Rule (PDF).

Jordan Schrader Ramis PC, Attorneys at Law ( www.jordanschrader.com) was established in Oregon in 1963. The firm represents private and public clients throughout the western United States in business, government, and Dirt Law®, which is the term we coined to describe our real estate, land use, environmental, natural resources, and construction law practice.

Copyright © 2008 Jordan Schrader Ramis PC. All rights reserved.

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