On October 10, 2007, a federal court issued a preliminary injunction in AFL-CIO v. Chertoff, Case No. 07-CV-4472 CRB (N.D. Cal.). The court enjoined the Department of Homeland Security and the Social Security Administration (SSA) from implementing the Final Rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” The new rule identifies the receipt of a no-match letter from the SSA as evidence that the employer had “constructive knowledge” that the employees listed in the letter were not authorized to work in the United States. As a result of the litigation, the SSA announced in November that no-match letters would not be sent out in 2007 and that it is unlikely any such letters would be sent out before Spring 2008.On November 23, Acting Assistant Attorney General Jeffrey Bucholtz filed a motion to stay the proceedings in the case on the basis that “DHS intends to conduct additional rulemaking proceedings to address the issues raised by the Court.” For instance, DHS plans to prepare a Regulatory Flexibility Act analysis. The motion is unopposed and requests a stay until March 24, 2008 or until an amended final rule is issued, whichever occurs first. A hearing on the motion has been scheduled for December 14, 2007.

On December 4, the DHS appealed the preliminary injunction to the Ninth Circuit.  DHS Secretary Michael Chertoff announced that the department still intends to issue a supplement to the rule that specifically addresses the grounds on which the district court based its injunction.  Secretary Chertoff added that “by pursuing these two paths simultaneously, [his] aim is to get a resolution as quickly as possible so [DHS] can move the No-Match Rule forward and provide honest employers the guidance they need.”