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Federal Judge Blocks Enforcement of New Immigration Rule on “No-Match” Letters

By Minh Phung Ngo and Richard M. Rawson
[October 2007]

A federal judge has granted a preliminary injunction blocking enforcement of a Department of Homeland Security (DHS) rule that established "safe harbor" procedures for employers to follow in response to a “no-match” letter from the Social Security Administration (SSA). The new rule was adopted on Aug. 14, 2007 and was scheduled to take effect on Sept. 14, 2007 (see previous DWT advisory), but on Aug. 29, a consortium of unions and business groups filed a lawsuit challenging the validity of the rule. In a 22-page decision dated Oct. 10, 2007, the judge concluded that serious issues had been raised about the validity of the new rule, and that a preliminary injunction was warranted to prevent irreparable harm pending a final decision by the court.

Prior to the injunction, the SSA was prepared to send out 140,000 no-match letters affecting more than eight million workers. Implementation of the new "safe harbor" procedures would have forced employers to terminate employees who could not resolve a no-match issue or who could not re-verify their employment authorization within 93 days after receipt of the no-match letter.

It is expected that the SSA will now issue no-match letters without reference to the new "safe harbor" procedures, and employers are advised to follow the instructions in the SSA letters and to not implement the "safe harbor" procedures unless and until the injunction has been lifted. However, employers are reminded that if they have actual knowledge that an employee is not authorized to work, (e.g., if the employee confesses to being illegal in response to a no-match letter), then the employer must terminate that employee or face fines for knowingly continuing to employ an unauthorized alien.

If you have questions or would like more information, please contact any member of DWT's immigration practice team, including:

	Minh Phung Ngo Seattle, Washington (206) 622-3150 minhngo@dwt.com		Richard M. Rawson Seattle, Washington (206) 622-3150 richrawson@dwt.com
	Christopher R. Helm Seattle, Washington (206) 622-3150 chrishelm@dwt.com		James M. Mei Portland, Oregon (503) 241-2300 jimmei@dwt.com

This advisory is a publication of the Employer Services Department of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.

Copyright © 2007, Davis Wright Tremaine LLP.

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