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Washington Labor & Employment Wire » DHS Issues Final Rule Rescinding No-Match

DHS Issues Final Rule Rescinding No-Match


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On October 7, 2009, the Department of Homeland Security (DHS)’s final rule to rescind the No-Match regulation was published in the Federal Register. DHS had published its proposed rule to rescind No-Match in the August 19 Federal Register. After considering public comments on the proposed rule, DHS finalized the rule without making any changes. The final rule reinstates the language of 8 CFR 274.1(l) as it existed prior to issuance of the No-Match Rule. The rule is scheduled to take effect 30 days after its publication in the Federal Register.

The No-Match Rule, initially issued by the Bush Administration in August 2007 (72 FR 45611) and supplemented in October 2008 (73 FR 63843), required the Social Security Administration (SSA) to detail the legal obligations of employers when they received a no-match letter from the SSA and outlined “safe-harbor” procedures for such employers. The No-Match Rule was never put in effect because it was blocked by court order shortly after its issuance. (See AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB (N.D. Cal.)

After completing a review of the Rule, DHS announced its intent to focus immigration enforcement efforts and community outreach on increased compliance through enhanced employment verification programs, such as E-Verify, and ICE Mutual Agreement Between Government and Employers (IMAGE), among other programs. The IMAGE program assists employers through education and training on enhanced techniques to identify fraudulent immigration documentation and proper hiring procedures.

On July 8, 2009, DHS announced its intention to propose a new regulation to rescind the Rule. A day later, the Senate approved by unanimous consent an amendment to the 2010 homeland security appropriations bill (H.R. 2892) prohibiting the use of 2010 funds to rescind the No-Match program. Although the proposed rule was published prior to the close of the fiscal year, the final rule was not.