Tomorrow, the Department of Homeland Security (DHS) will publish in the Federal Register a Supplemental Proposed Rulemaking for the No-Match Rule. The initial No-Match rule, which created new legal obligations for businesses to verify employees are authorized for domestic work, was published and scheduled to take effect on September 14, 2007. However, the implementation of the rule was delayed due to litigation led by the U.S. Chamber of Commerce, National Roofing Contractors Association, American Nursery and Landscape Association, and United Fresh. Last October, these groups successfully challenged some of the procedural aspects of how the rule was issued.

In a press statement, DHS notes that "the rule does not create new legal obligations for businesses. It simply outlines clear steps an employer may take in response to receiving a letter from the Social Security Administration indicating that an employee's name does not match the social security number on file. If the business follows the guidance in the No-Match Rule, comprising various actions to rectify the no-match within 90 days of receiving the letter, they will have a safe harbor from the no-match letter being used against them in an enforcement action". However, preliminary analysis of the revised rule so far confirms that the Department made very few changes to the substance of the initial rule. Instead, the revised rule is merely an attempt to supplement the rulemaking and address the procedural deficiencies noted by the court.

As a result of the lawsuit last fall, the Administration halted the implementation of the rule and delayed issuing no-match letters to employers. However, with the release of the revised rule and in the absence of new claims being pursued, it is expected that the Administration will give the “green light” to SSA to begin issuing no-match letters, along with a letter from the DHS instructing employers of appropriate actions to take.

United Fresh will continue to track the administration's actions and analyze the impact they can have on produce businesses. For additional information regarding the SSA and DHS's policy regarding no-match letters, visit the SSA website. In addition, you can visit the United Fresh No-Match Immigration Resource Center for additional information about this important issue and a copy of the new proposed rule.